ART II

TAÑADA vs.HON. JUAN C. TUVERA.

RESOLUTION

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure of a number
of presidential decrees which they claimed had not been published as required by law.
The government argued that while publication was necessary as a rule, it was not so
when it was "otherwise provided," as when the decrees themselves declared that they
were to become effective immediately upon their approval. In the decision of this case
on April 24, 1985, the Court affirmed the necessity for the publication of some of
these decrees, declaring in the dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official

Gazette all unpublished presidential issuances which are of general application,
and unless so published, they shall have no binding force and effect.

The petitioners are now before us again, this time to move for
reconsideration/clarification of that decision. 1Specifically, they ask the following
questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which
are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction
between laws of general applicability and those which are not; that publication means
complete publication; and that the publication must be made forthwith in the Official
Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the
motion was a request for an advisory opinion and should therefore be dismissed, and,
on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil
Code meant that the publication required therein was not always imperative; that
publication, when necessary, did not have to be made in the Official Gazette; and that
in any case the subject decision was concurred in only by three justices and
consequently not binding. This elicited a Reply 4 refuting these arguments. Came next
the February Revolution and the Court required the new Solicitor General to file a
Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of
Court. Responding, he submitted that issuances intended only for the internal
administration of a government agency or for particular persons did not have to be
'Published; that publication when necessary must be in full and in the Official Gazette;
and that, however, the decision under reconsideration was not binding because it was
not supported by eight members of this Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

ART. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication.

After a careful study of this provision and of the arguments of the parties, both on the
original petition and on the instant motion, we have come to the conclusion and so
hold, that the clause "unless it is otherwise provided" refers to the date of effectivity
and not to the requirement of publication itself, which cannot in any event be omitted.
This clause does not mean that the legislature may make the law effective
immediately upon approval, or on any other date, without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion
provide that the usual fifteen-day period shall be shortened or extended. An example,
as pointed out by the present Chief Justice in his separate concurrence in the original
decision, 6 is the Civil Code which did not become effective after fifteen days from its
publication in the Official Gazette but "one year after such publication." The general
rule did not apply because it was "otherwise provided. "

It is not correct to say that under the disputed clause publication may be dispensed
with altogether. The reason. is that such omission would offend due process insofar as
it would deny the public knowledge of the laws that are supposed to govern the
legislature could validly provide that a law e effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short period after
publication), it is not unlikely that persons not aware of it would be prejudiced as a
result and they would be so not because of a failure to comply with but simply
because they did not know of its existence, Significantly, this is not true only of penal
laws as is commonly supposed. One can think of many non-penal measures, like a law
on prescription, which must also be communicated to the persons they may affect
before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law,
which of course presupposes that the law has been published if the presumption is to
have any legal justification at all. It is no less important to remember that Section 6 of
the Bill of Rights recognizes "the right of the people to information on matters of
public concern," and this certainly applies to, among others, and indeed especially, the
legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application,
for strictly speaking all laws relate to the people in general albeit there are some that
do not apply to them directly. An example is a law granting citizenship to a particular
individual, like a relative of President Marcos who was decreed instant naturalization.
It surely cannot be said that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The subject of such law is a
matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in the courts of justice. In fact, a law
without any bearing on the public would be invalid as an intrusion of privacy or as
class legislation or as an ultra vires act of the legislature. To be valid, the law must
invariably affect the public interest even if it might be directly applicable only to one
individual, or some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local application and private

laws, shall be published as a condition for their effectivity, which shall begin fifteen
days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly
delegated by the legislature or, at present, directly conferred by the Constitution.
administrative rules and regulations must a also be published if their purpose is to
enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only
the personnel of the administrative agency and not the public, need not be published.
Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that it

applies to only a portion of the national territory and directly affects only the
inhabitants of that place. All presidential decrees must be published, including even,
say, those naming a public place after a favored individual or exempting him from
certain prohibitions or requirements. The circulars issued by the Monetary Board must
be published if they are meant not merely to interpret but to "fill in the details" of the
Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of
Social Welfare on the case studies to be made in petitions for adoption or the rules laid
down by the head of a government agency on the assignments or workload of his
personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are
not covered by this rule but by the Local Government Code.
We agree that publication must be in full or it is no publication at all since its purpose
is to inform the public of the contents of the laws. As correctly pointed out by the
petitioners, the mere mention of the number of the presidential decree, the title of such
decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of
effectivity, and in a mere supplement of the Official Gazette cannot satisfy the
publication requirement. This is not even substantial compliance. This was the
manner, incidentally, in which the General Appropriations Act for FY 1975, a
presidential decree undeniably of general applicability and interest, was "published"
by the Marcos administration. 7 The evident purpose was to withhold rather than
disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were
categorically for publication in the Official Gazette 8 and that six others felt that
publication could be made elsewhere as long as the people were sufficiently
informed. 9 One reserved his vote 10 and another merely acknowledged the need for
due publication without indicating where it should be made. 11 It is therefore necessary
for the present membership of this Court to arrive at a clear consensus on this matter
and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the
Official Gazette, considering its erratic releases and limited readership. Undoubtedly,
newspapers of general circulation could better perform the function of
communicating, the laws to the people as such periodicals are more easily available,
have a wider readership, and come out regularly. The trouble, though, is that this kind
of publication is not the one required or authorized by existing law. As far as we
know, no amendment has been made of Article 2 of the Civil Code. The Solicitor
General has not pointed to such a law, and we have no information that it exists. If it
does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal
or modify it if we find it impractical. That is not our function. That function belongs to
the legislature. Our task is merely to interpret and apply the law as conceived and
approved by the political departments of the government in accordance with the
prescribed procedure. Consequently, we have no choice but to pronounce that under
Article 2 of the Civil Code, the publication of laws must be made in the Official
Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from
such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as
possible, to give effect to the law pursuant to the said Article 2. There is that
possibility, of course, although not suggested by the parties that a law could be
rendered unenforceable by a mere refusal of the executive, for whatever reason, to
cause its publication as required. This is a matter, however, that we do not need to
examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a request
for an advisory opinion is untenable, to say the least, and deserves no further
comment.

The days of the secret laws and the unpublished decrees are over. This is once again
an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if our country is to remain
democratic, with sovereignty residing in the people and all government authority
emanating from them.

Although they have delegated the power of legislation, they retain the authority to
review the work of their delegates and to ratify or reject it according to their lights,
through their freedom of expression and their right of suffrage. This they cannot do if
the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and contents are confirmed by
a valid publication intended to make full disclosure and give proper notice to the
people. The furtive law is like a scabbarded saber that cannot feint parry or cut unless
the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately
upon their approval, or as soon thereafter as possible, be published in full in the
Official Gazette, to become effective only after fifteen days from their publication, or
on another date specified by the legislature, in accordance with Article 2 of the Civil
Code.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr.,

and Paras, JJ., concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr.

Justice Isagani A. Cruz, I would like to add a few observations. Even as a Member of
the defunct Batasang Pambansa, I took a strong stand against the insidious manner by
which the previous dispensation had promulgated and made effective thousands of
decrees, executive orders, letters of instructions, etc. Never has the law-making power
which traditionally belongs to the legislature been used and abused to satisfy the
whims and caprices of a one-man legislative mill as it happened in the past regime.
Thus, in those days, it was not surprising to witness the sad spectacle of two
presidential decrees bearing the same number, although covering two different subject
matters. In point is the case of two presidential decrees bearing number 1686 issued
on March 19, 1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle equipped with
airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also
on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore
and Dennis George Still

The categorical statement by this Court on the need for publication before any law
may be made effective seeks prevent abuses on the part of the lawmakers and, at the
same time, ensures to the people their constitutional right to due process and to
information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice
Isagani A. Cruz. At the same time, I wish to add a few statements to reflect my
understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediately upon
approval thereof, is properly interpreted as coming into effect immediately upon
publication thereof in the Official Gazette as provided in Article 2 of the Civil Code.
Such statute, in other words, should not be regarded as purporting literally to come
into effect immediately upon its approval or enactment and without need of
publication. For so to interpret such statute would be to collide with the constitutional
obstacle posed by the due process clause. The enforcement of prescriptions which are
both unknown to and unknowable by those subjected to the statute, has been
throughout history a common tool of tyrannical governments. Such application and
enforcement constitutes at bottom a negation of the fundamental principle of legality
in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the
Official Gazette, as distinguished from any other medium such as a newspaper of
general circulation, is embodied in a statutory norm and is not a constitutional
command. The statutory norm is set out in Article 2 of the Civil Code and is supported
and reinforced by Section 1 of Commonwealth Act No. 638 and Section 35 of the
Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could,
without creating a constitutional problem, be amended by a subsequent statute
providing, for instance, for publication either in the Official Gazette or in a newspaper
of general circulation in the country. Until such an amendatory statute is in fact
enacted, Article 2 of the Civil Code must be obeyed and publication effected in the
Official Gazette and not in any other medium. 

Separate Opinions

FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr.
Justice Isagani A. Cruz, I would like to add a few observations. Even as a Member of
the defunct Batasang Pambansa, I took a strong stand against the insidious manner by
which the previous dispensation had promulgated and made effective thousands of
decrees, executive orders, letters of instructions, etc. Never has the law-making power
which traditionally belongs to the legislature been used and abused to satisfy the
whims and caprices of a one-man legislative mill as it happened in the past regime.
Thus, in those days, it was not surprising to witness the sad spectacle of two
presidential decrees bearing the same number, although covering two different subject
matters. In point is the case of two presidential decrees bearing number 1686 issued
on March 19, 1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle equipped with
airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also
on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore
and Dennis George Still

The categorical statement by this Court on the need for publication before any law
may be made effective seeks prevent abuses on the part of the lawmakers and, at the
same time, ensures to the people their constitutional right to due process and to
information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice
Isagani A. Cruz. At the same time, I wish to add a few statements to reflect my
understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediately upon
approval thereof, is properly interpreted as coming into effect immediately upon
publication thereof in the Official Gazette as provided in Article 2 of the Civil Code.
Such statute, in other words, should not be regarded as purporting literally to come
into effect immediately upon its approval or enactment and without need of
publication. For so to interpret such statute would be to collide with the constitutional
obstacle posed by the due process clause. The enforcement of prescriptions which are
both unknown to and unknowable by those subjected to the statute, has been
throughout history a common tool of tyrannical governments. Such application and
enforcement constitutes at bottom a negation of the fundamental principle of legality
in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the
Official Gazette, as distinguished from any other medium such as a newspaper of
general circulation, is embodied in a statutory norm and is not a constitutional
command. The statutory norm is set out in Article 2 of the Civil Code and is supported
and reinforced by Section 1 of Commonwealth Act No. 638 and Section 35 of the
Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could,
without creating a constitutional problem, be amended by a subsequent statute
providing, for instance, for publication either in the Official Gazette or in a newspaper
of general circulation in the country. Until such an amendatory statute is in fact
enacted, Article 2 of the Civil Code must be obeyed and publication effected in the
Official Gazette and not in any other medium.

[ G.R. No. 80718, January 29, 1988 ]

DE ROY VS. COURT OF APPEALS AND LUIS BERNAL, SR.,
RESOLUTION

CORTES, J.: 

This special civil action for certiorari seeks to declare null and void two (2)
resolutions of the Special First Division of the Court of Appeals in the case
of Luis Bernal, Sr., et al., v. Felisa Perdosa De Roy, et al., CA-G.R. CV No.
07286. The first resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for reconsideration and
directed entry of judgment since the decision in said case had become final; and
the second Resolution dated 27 October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being
verified as required by Rule 65 section 1 of the Rules of Court. However, even if
the instant petition did not suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building
owned by petitioners collapsed and destroyed the tailoring shop occupied by the
family of private respondents, resulting in injuries to private respondents and
the death of Marissa Bernal, a daughter. Private respondents had been warned
by petitioners to vacate their shop in view of its proximity to the weakened wall
but the former failed to do so. On the basis of the foregoing facts, the Regional
Trial Court, First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio
M. Belen, rendered judgment finding petitioners guilty of gross negligence and
awarding damages to private respondents. On appeal, the decision of the trial
court was affirmed in toto by the Court of Appeals in a decision promulgated on
August 17, 1987, copy of which was received by petitioners on August 25, 1987.
On September 9, 1987, the last day of the fifteen-day period to file an appeal,
petitioners filed a motion for extension of time to file a motion for
reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for
reconsideration on September 24, 1987, but this was denied in the Resolution of
October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of
discretion when it denied petitioners' motion for extension of time to file a
motion for reconsideration, directed entry of judgment and denied their motion
for reconsideration. It correctly applied the rule laid down in Habaluyas
Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985, 138 SCRA 46],
that the fifteen-day period for appealing or for filing a motion for reconsideration
cannot be extended. In its Resolution denying the motion for reconsideration,
promulgated on May 30, 1986 (142 SCRA 208), this Court en banc restated and
clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be
strictly enforced that no motion for extension of time to file a motion for
reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the
Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may
be filed only in cases pending with the Supreme Court as the court of last resort,
which may in its sound discretion either grant or deny the extension requested.
(at p. 212)

Lacsamana v. Second Special Cases Division of the Intermediate Appellate

Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule
and went further to restate and clarify the modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986, 144
SCRA 161], stressed the prospective application of said rule, and explained the
operation of the grace period, to wit:

In other words, there is a one-month grace period from the promulgation on

May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up
to June 30, 1986, within which the rule barring extensions of time to file motions
for new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it
is still within the grace period, which expired on June 30, 1986, and may still be
allowed.

This grace period was also applied in Mission v. Intermediate Appellate

Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].

In the instant case, however, petitioners' motion for extension of time was filed
on September 9, 1987, more than a year after the expiration of the grace period
on June 30, 1986. Hence, it is no longer within the coverage of the grace period.
Considering the length of time from the expiration of the grace period to the
promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration within the reglementary
period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be

made to apply to the case at bar owing to the non-publication of
the Habaluyas decision in the Official Gazette as of the time the subject decision
of the Court of Appeals was promulgated. Contrary to petitioners' view, there is
no law requiring the publication of Supreme Court decisions in the Official
Gazette before they can be binding and as a condition to their becoming
effective. It is the bounden duty of counsel as lawyer in active law practice to
keep abreast of decisions of the Supreme Court particularly where issues have
been clarified, consistently reiterated, and published in the advance reports of
Supreme Court decisions (G.R.s) and in such publications as the Supreme Court
Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of
discretion in affirming the trial court's decision holding petitioner liable under
Article 2190 of the Civil Code, which provides that "the proprietor of a building or
structure is responsible for the damage resulting from its total or partial
collapse, if it should be due to the lack of necessary repairs."

Nor was there error in rejecting petitioners' argument that private respondents
had the "last clear chance" to avoid the accident if only they heeded the warning
to vacate the tailoring shop and, therefore, petitioners' prior negligence should
be disregarded, since the doctrine of "last clear chance", which has been applied
to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant
petition for lack of merit.
ART. III

A.M. No. MTJ-92-706 March 29, 1995

LUPO ALMODIEL ATIENZA vs. JUDGE FRANCISCO F. BRILLANTES, JR.,

QUIASON, J.:

This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of

Impropriety against Judge Francisco Brillantes, Jr., Presiding Judge of the
Metropolitan Trial Court, Branch 20, Manila.

Complainant alleges that he has two children with Yolanda De Castro, who are living
together at No. 34 Galaxy Street, Bel-Air Subdivision, Makati, Metro Manila. He
stays in said house, which he purchased in 1987, whenever he is in Manila.

In December 1991, upon opening the door to his bedroom, he saw respondent sleeping
on his (complainant's) bed. Upon inquiry, he was told by the houseboy that respondent
had been cohabiting with De Castro. Complainant did not bother to wake up
respondent and instead left the house after giving instructions to his houseboy to take
care of his children.

Thereafter, respondent prevented him from visiting his children and even alienated the
affection of his children for him.

Complainant claims that respondent is married to one Zenaida Ongkiko with whom he
has five children, as appearing in his 1986 and 1991 sworn statements of assets and
liabilities. Furthermore, he alleges that respondent caused his arrest on January 13,
1992, after he had a heated argument with De Castro inside the latter's office.

For his part, respondent alleges that complainant was not married to De Castro and
that the filing of the administrative action was related to complainant's claim on the
Bel-Air residence, which was disputed by De Castro.

Respondent denies that he caused complainant's arrest and claims that he was even a
witness to the withdrawal of the complaint for Grave Slander filed by De Castro
against complainant. According to him, it was the sister of De Castro who called the
police to arrest complainant.

Respondent also denies having been married to Ongkiko, although he admits having
five children with her. He alleges that while he and Ongkiko went through a marriage
ceremony before a Nueva Ecija town mayor on April 25, 1965, the same was not a
valid marriage for lack of a marriage license. Upon the request of the parents of
Ongkiko, respondent went through another marriage ceremony with her in Manila on
June 5, 1965. Again, neither party applied for a marriage license. Ongkiko abandoned
respondent 17 years ago, leaving their children to his care and custody as a single
parent.

Respondent claims that when he married De Castro in civil rites in Los Angeles,
California on December 4, 1991, he believed, in all good faith and for all legal intents
and purposes, that he was single because his first marriage was solemnized without a
license.

Under the Family Code, there must be a judicial declaration of the nullity of a
previous marriage before a party thereto can enter into a second marriage. Article 40
of said Code provides:

The absolute nullity of a previous marriage may be invoked for the purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void.

Respondent argues that the provision of Article 40 of the Family Code does not apply
to him considering that his first marriage took place in 1965 and was governed by the
Civil Code of the Philippines; while the second marriage took place in 1991 and
governed by the Family Code.

Article 40 is applicable to remarriages entered into after the effectivity of the Family
Code on August 3, 1988 regardless of the date of the first marriage. Besides, under
Article 256 of the Family Code, said Article is given "retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws." This is particularly true with Article 40, which is a rule of
procedure. Respondent has not shown any vested right that was impaired by the
application of Article 40 to his case.

The fact that procedural statutes may somehow affect the litigants' rights may not
preclude their retroactive application to pending actions. The retroactive application of
procedural laws is not violative of any right of a person who may feel that he is
adversely affected (Gregorio v. Court of Appeals, 26 SCRA 229 [1968]). The reason
is that as a general rule no vested right may attach to, nor arise from, procedural laws
(Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]).

Respondent is the last person allowed to invoke good faith. He made a mockery of the
institution of marriage and employed deceit to be able to cohabit with a woman, who
beget him five children.

Respondent passed the Bar examinations in 1962 and was admitted to the practice of
law in 1963. At the time he went through the two marriage ceremonies with Ongkiko,
he was already a lawyer. Yet, he never secured any marriage license. Any law student
would know that a marriage license is necessary before one can get married.
Respondent was given an opportunity to correct the flaw in his first marriage when he
and Ongkiko were married for the second time. His failure to secure a marriage
license on these two occasions betrays his sinister motives and bad faith.

It is evident that respondent failed to meet the standard of moral fitness for
membership in the legal profession.

While the deceit employed by respondent existed prior to his appointment as a

Metropolitan Trial Judge, his immoral and illegal act of cohabiting with De Castro
began and continued when he was already in the judiciary.

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a
whiff of impropriety, not only with respect to his performance of his judicial duties
but also as to his behavior as a private individual. There is no duality of morality. A
public figure is also judged by his private life. A judge, in order to promote public
confidence in the integrity and impartiality of the judiciary, must behave with
propriety at all times, in the performance of his judicial duties and in his everyday life.
These are judicial guideposts too self-evident to be overlooked. No position exacts a
greater demand on moral righteousness and uprightness of an individual than a seat in
the judiciary (Imbing v. Tiongzon, 229 SCRA 690 [1994]).

WHEREFORE, respondent is DISMISSED from the service with forfeiture of all

leave and retirement benefits and with prejudice to reappointment in any branch,
instrumentality, or agency of the government, including government-owned and
controlled corporations. This decision is immediately executory.

SO ORDERED.
[ G.R. No. 179922, December 16, 2008 ]

CARLOS VS. FELICIDAD SANDOVAL

DECISION

REYES, R.T., J.: 

ONLY a spouse can initiate an action to sever the marital bond for marriages
solemnized during the effectivity of the Family Code, except cases commenced prior
to March 15, 2003. The nullity and annulment of a marriage cannot be declared in a
judgment on the pleadings, summary judgment, or confession of judgment.

We pronounce these principles as We review on certiorari the Decision[1] of the Court

of Appeals (CA) which reversed and set aside the summary judgment[2] of the
Regional Trial Court (RTC) in an action for declaration of nullity of marriage, status
of a child, recovery of property, reconveyance, sum of money, and damages.

The Facts

The events that led to the institution of the instant suit are unveiled as follows:

Spouses Felix B. Carlos and Felipa Elemia died intestate. They left six parcels of land
to their compulsory heirs, Teofilo Carlos and petitioner Juan De Dios Carlos. The lots
are particularly described as follows:

Parcel No. 1

Lot No. 162 of the MUNTINLUPA ESTATE SUBDIVISION, Case No. 6137 of the

Court of Land Registration.

Exemption from the provisions of Article 567 of the Civil Code is specifically
reserved.

Area: 1 hectare, 06 ares, 07 centares.

Parcel No. 2

A parcel of land (Lot No. 159-B), being a portion of Lot 159, situated in the Bo. of
Alabang, Municipality of Muntinlupa, Province of Rizal, x x x containing an area of
Thirteen Thousand Four Hundred Forty One (13,441) square meters.

Parcel No. 3

A parcel of land (Lot 159-B-2 of the subd. plan [LRC] Psd-325903, approved as a
non-subd. project), being a portion of Lot 159-B [LRC] Psd- Alabang, Mun. of
Muntinlupa, Metro Manila, Island of Luzon. Bounded on the NE, points 2 to 4 by Lot
155, Muntinlupa Estate; on the SE, point 4 to 5 by Lot 159-B-5; on the S, points 5 to 1
by Lot 159-B-3; on the W, points 1 to 2 by Lot 159-B-1 (Road widening) all of the
subd. plan, containing an area of ONE HUNDRED THIRTY (130) SQ. METERS,
more or less.

PARCEL No. 4

A parcel of land (Lot 28-C of the subd. plan Psd-13-007090, being a portion of Lot
28, Muntinlupa Estate, L.R.C. Rec. No. 6137), situated in the Bo. of Alabang, Mun. of
Muntinlupa, Metro Manila. Bounded on the NE, along lines 1-2 by Lot 27,
Muntinlupa Estate; on the East & SE, along lines 2 to 6 by Mangangata River; and on
the West., along line 6-1, by Lot 28-B of the subd. plan x x x containing an area of
ONE THUSAND AND SEVENTY-SIX (1,076) SQUARE METERS.

PARCEL No. 5

PARCELA DE TERRENO No. 50, Manzana No. 18, de la subd. de Solocan. Linda

por el NW, con la parcela 49; por el NE, con la parcela 36; por el SE, con la parcela
51; y por el SW, con la calle Dos Castillas. Partiendo de un punto marcado 1 en el
plano, el cual se halla a S. gds. 01'W, 72.50 mts. Desde el punto 1 de esta manzana,
que es un mojon de concreto de la Ciudad de Manila, situado on el esquina E. que
forman las Calles Laong Laan y Dos. Castillas, continiendo un extension superficial
de CIENTO CINCUENTA (150) METROS CUADRADOS.

PARCEL No. 6

PARCELA DE TERRENO No. 51, Manzana No. 18, de la subd. De Solocon. Linda

por el NW, con la parcela 50; por el NE, con la parcela 37; por el SE, con la parcela
52; por el SW, con la Calle Dos Castillas. Partiendo de un punto Marcado 1 en el
plano, el cual se halla at S. 43 gds. 01'E, 82.50 mts. Desde el punto 1 de esta manzana,
que es un mojon de concreto de la Ciudad de Manila, situado on el esquina E. que
forman las Calles Laong Laan y Dos. Castillas, continiendo una extension superficial
de CIENTO CINCUENTA (150) METROS CUADRADOS.[3]

During the lifetime of Felix Carlos, he agreed to transfer his estate to Teofilo. The
agreement was made in order to avoid the payment of inheritance taxes. Teofilo, in
turn, undertook to deliver and turn over the share of the other legal heir, petitioner
Juan De Dios Carlos.

Eventually, the first three (3) parcels of land were transferred and registered in the
name of Teofilo. These three (3) lots are now covered by Transfer Certificate of Title
(TCT) No. 234824 issued by the Registry of Deeds of Makati City; TCT No. 139061
issued by the Registry of Deeds of Makati City; and TCT No. 139058 issued by the
Registry of Deeds of Makati City.

Parcel No. 4 was registered in the name of petitioner. The lot is now covered by
TCT No. 160401 issued by the Registry of Deeds of Makati City.

On May 13, 1992, Teofilo died intestate. He was survived by respondents Felicidad
and their son, Teofilo Carlos II (Teofilo II). Upon Teofilo's death, Parcel Nos. 5 & 6
were registered in the name of respondent Felicidad and co-respondent, Teofilo II.
The said two (2) parcels of land are covered by TCT Nos. 219877 and 210878,
respectively, issued by the Registry of Deeds of Manila.

In 1994, petitioner instituted a suit against respondents before the RTC in Muntinlupa
City, docketed as Civil Case No. 94-1964. In the said case, the parties submitted and
caused the approval of a partial compromise agreement. Under the compromise, the
parties acknowledged their respective shares in the proceeds from the sale of a portion
of the first parcel of land. This includes the remaining 6,691-square-meter portion of
said land.

On September 17, 1994, the parties executed a deed of extrajudicial partition, dividing
the remaining land of the first parcel between them.

Meanwhile, in a separate case entitled Rillo v. Carlos,[4] 2,331 square meters of the

second parcel of land were adjudicated in favor of plaintiffs Rillo. The remaining
10,000-square meter portion was later divided between petitioner and respondents.

The division was incorporated in a supplemental compromise agreement executed on

August 17, 1994, with respect to Civil Case No. 94-1964. The parties submitted the
supplemental compromise agreement, which was approved accordingly.
Petitioner and respondents entered into two more contracts in August 1994. Under the
contracts, the parties equally divided between them the third and fourth parcels of
land.

In August 1995, petitioner commenced an action, docketed as Civil Case No. 95-135,

against respondents before the court a quo with the following causes of action: (a)
declaration of nullity of marriage; (b) status of a child; (c) recovery of property; (d)
reconveyance; and (e) sum of money and damages. The complaint was raffled to
Branch 256 of the RTC in Muntinlupa.

In his complaint, petitioner asserted that the marriage between his late brother Teofilo
and respondent Felicidad was a nullity in view of the absence of the required marriage
license. He likewise maintained that his deceased brother was neither the natural nor
the adoptive father of respondent Teofilo Carlos II.

Petitioner likewise sought the avoidance of the contracts he entered into with
respondent Felicidad with respect to the subject real properties. He also prayed for the
cancellation of the certificates of title issued in the name of respondents. He argued
that the properties covered by such certificates of title, including the sums received by
respondents as proceeds, should be reconveyed to him.

Finally, petitioner claimed indemnification as and by way of moral and exemplary

damages, attorney's fees, litigation expenses, and costs of suit.

On October 16, 1995, respondents submitted their answer. They denied the material
averments of petitioner's complaint. Respondents contended that the dearth of details
regarding the requisite marriage license did not invalidate Felicidad's marriage to
Teofilo. Respondents declared that Teofilo II was the illegitimate child of the
deceased Teofilo Carlos with another woman.

On the grounds of lack of cause of action and lack of jurisdiction over the subject
matter, respondents prayed for the dismissal of the case before the trial court. They
also asked that their counterclaims for moral and exemplary damages, as well as
attorney's fees, be granted.

But before the parties could even proceed to pre-trial, respondents moved for
summary judgment. Attached to the motion was the affidavit of the justice of the
peace who solemnized the marriage. Respondents also submitted the Certificate of
Live Birth of respondent Teofilo II. In the certificate, the late Teofilo Carlos and
respondent Felicidad were designated as parents.
On January 5, 1996, petitioner opposed the motion for summary judgment on the
ground of irregularity of the contract evidencing the marriage. In the same breath,
petitioner lodged his own motion for summary judgment. Petitioner presented a
certification from the Local Civil Registrar of Calumpit, Bulacan, certifying that there
is no record of birth of respondent Teofilo II.

Petitioner also incorporated in the counter-motion for summary judgment the

testimony of respondent Felicidad in another case. Said testimony was made in Civil
Case No. 89-2384, entitled Carlos v. Gorospe, before the RTC Branch 255, Las Piñas.
In her testimony, respondent Felicidad narrated that co-respondent Teofilo II is her
child with Teofilo.[5]

Subsequently, the Office of the City Prosecutor of Muntinlupa submitted to the trial
court its report and manifestation, discounting the possibility of collusion between the
parties.

RTC and CA Dispositions

On April 8, 1996, the RTC rendered judgment, disposing as follows:

WHEREFORE, premises considered, defendant's (respondent's) Motion for

Summary Judgment is hereby denied. Plaintiff's (petitioner's) Counter-Motion for
Summary Judgment is hereby granted and summary judgment is hereby rendered in
favor of plaintiff as follows:

1. Declaring the marriage between defendant Felicidad Sandoval and Teofilo

Carlos solemnized at Silang, Cavite on May 14, 1962, evidenced by the
Marriage Certificate submitted in this case, null and void ab initio for lack of
the requisite marriage license;

2. Declaring that the defendant minor, Teofilo S. Carlos II, is not the natural,
illegitimate, or legally adopted child of the late Teofilo E. Carlos;

3. Ordering defendant Sandoval to pay and restitute to plaintiff the sum of

P18,924,800.00 together with the interest thereon at the legal rate from date of
filing of the instant complaint until fully paid;

4. Declaring plaintiff as the sole and exclusive owner of the parcel of land, less
the portion adjudicated to plaintiffs in Civil Case No. 11975, covered by
TCT No. 139061 of the Register of Deeds of Makati City, and ordering said
 Register of Deeds to cancel said title and to issue another title in the sole name
of plaintiff herein;

5. Declaring the Contract, Annex "K" of complaint, between plaintiff and

defendant Sandoval null and void, and ordering the Register of Deeds of
Makati City to cancel TCT No. 139058 in the name of Teofilo Carlos, and to
issue another title in the sole name of plaintiff herein;

6. Declaring the Contract, Annex M of the complaint, between plaintiff and

defendant Sandoval null and void;

7. Ordering the cancellation of TCT No. 210877 in the names of defendant

Sandoval and defendant minor Teofilo S. Carlos II and ordering the Register of
Deeds of Manila to issue another title in the exclusive name of plaintiff herein;

8. Ordering the cancellation of TCT No. 210878 in the name of defendant

Sandoval and defendant Minor Teofilo S. Carlos II and ordering the Register of
Deeds of Manila to issue another title in the sole name of plaintiff herein.

Let this case be set for hearing for the reception of plaintiff's evidence on his claim for
moral damages, exemplary damages, attorney's fees, appearance fees, and litigation
expenses on June 7, 1996 at 1:30 o'clock in the afternoon.

SO ORDERED.[6]

Dissatisfied, respondents appealed to the CA. In the appeal, respondents argued, inter

alia, that the trial court acted without or in excess of jurisdiction in rendering
summary judgment annulling the marriage of Teofilo, Sr. and Felicidad and in
declaring Teofilo II as not an illegitimate child of Teofilo, Sr.

On October 15, 2002, the CA reversed and set aside the RTC ruling, disposing as
follows:

WHEREFORE, the summary judgment appealed from is REVERSED and SET

ASIDE and in lieu thereof, a new one is entered REMANDING the case to the court
of origin for further proceedings.

SO ORDERED.[7]

The CA opined:

We find the rendition of the herein appealed summary judgment by the court a
quo contrary to law and public policy as ensconced in the aforesaid safeguards. The
fact that it was appellants who first sought summary judgment from the trial court, did
not justify the grant thereof in favor of appellee. Not being an action "to recover upon
a claim" or "to obtain a declaratory relief," the rule on summary judgment apply (sic)
to an action to annul a marriage. The mere fact that no genuine issue was presented
and the desire to expedite the disposition of the case cannot justify a misinterpretation
of the rule. The first paragraph of Article 88 and 101 of the Civil Code expressly
prohibit the rendition of decree of annulment of a marriage upon a stipulation of facts
or a confession of judgment. Yet, the affidavits annexed to the petition for summary
judgment practically amount to these methods explicitly proscribed by the law.

We are not unmindful of appellee's argument that the foregoing safeguards have
traditionally been applied to prevent collusion of spouses in the matter of dissolution
of marriages and that the death of Teofilo Carlos on May 13, 1992 had effectively
dissolved the marriage herein impugned. The fact, however, that appellee's own
brother and appellant Felicidad Sandoval lived together as husband and wife for thirty
years and that the annulment of their marriage is the very means by which the latter is
sought to be deprived of her participation in the estate left by the former call for a
closer and more thorough inquiry into the circumstances surrounding the case. Rather
that the summary nature by which the court a quo resolved the issues in the case, the
rule is to the effect that the material facts alleged in the complaint for annulment of
marriage should always be proved. Section 1, Rule 19 of the Revised Rules of Court
provides:

"Section 1. Judgment on the pleadings. – Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court
may, on motion of that party, direct judgment on such pleading. But in actions for
annulment of marriage or for legal separation, the material facts alleged in the
complaint shall always be proved." (Underscoring supplied)

Moreover, even if We were to sustain the applicability of the rules on summary

judgment to the case at bench, Our perusal of the record shows that the finding of the
court a quo for appellee would still not be warranted. While it may be readily
conceded that a valid marriage license is among the formal requisites of marriage, the
absence of which renders the marriage void ab initiopursuant to Article 80(3) in
relation to Article 58 of the Civil Code the failure to reflect the serial number of the
marriage license on the marriage contract evidencing the marriage between Teofilo
Carlos and appellant Felicidad Sandoval, although irregular, is not as fatal as appellee
represents it to be. Aside from the dearth of evidence to the contrary, appellant
Felicidad Sandoval's affirmation of the existence of said marriage license is
corroborated by the following statement in the affidavit executed by Godofredo Fojas,
then Justice of the Peace who officiated the impugned marriage, to wit:
"That as far as I could remember, there was a marriage license issued at Silang, Cavite
on May 14, 1962 as basis of the said marriage contract executed by Teofilo Carlos and
Felicidad Sandoval, but the number of said marriage license was inadvertently not
placed in the marriage contract for the reason that it was the Office Clerk who filled
up the blanks in the Marriage Contract who in turn, may have overlooked the same."

Rather than the inferences merely drawn by the trial court, We are of the considered
view that the veracity and credibility of the foregoing statement as well as the
motivations underlying the same should be properly threshed out in a trial of the case
on the merits.

If the non-presentation of the marriage contract – the primary evidence of marriage –

is not proof that a marriage did not take place, neither should appellants' non-
presentation of the subject marriage license be taken as proof that the same was not
procured. The burden of proof to show the nullity of the marriage, it must be
emphasized, rests upon the plaintiff and any doubt should be resolved in favor of the
validity of the marriage.

Considering that the burden of proof also rests on the party who disputes the
legitimacy of a particular party, the same may be said of the trial court's rejection of
the relationship between appellant Teofilo Carlos II and his putative father on the
basis of the inconsistencies in appellant Felicidad Sandoval's statements. Although it
had effectively disavowed appellant's prior claims regarding the legitimacy of
appellant Teofilo Carlos II, the averment in the answer that he is the illegitimate son
of appellee's brother, to Our mind, did not altogether foreclose the possibility of the
said appellant's illegitimate filiation, his right to prove the same or, for that matter, his
entitlement to inheritance rights as such.

Without trial on the merits having been conducted in the case, We find appellee's bare
allegation that appellant Teofilo Carlos II was merely purchased from an indigent
couple by appellant Felicidad Sandoval, on the whole, insufficient to support what
could well be a minor's total forfeiture of the rights arising from his putative filiation.
Inconsistent though it may be to her previous statements, appellant Felicidad
Sandoval's declaration regarding the illegitimate filiation of Teofilo Carlos II is more
credible when considered in the light of the fact that, during the last eight years of his
life, Teofilo Carlos allowed said appellant the use of his name and the shelter of his
household. The least that the trial court could have done in the premises was to
conduct a trial on the merits in order to be able to thoroughly resolve the issues
pertaining to the filiation of appellant Teofilo Carlos II.[8]
On November 22, 2006, petitioner moved for reconsideration and for the inhibition of
the ponente, Justice Rebecca De Guia-Salvador. The CA denied the twin motions.

Issues

In this petition under Rule 45, petitioner hoists the following issues:

1. That, in reversing and setting aside the Summary Judgment under the Decision,
Annex A hereof, and in denying petitioner's Motion for reconsideration under
the Resolution, Annex F hereof, with respect to the nullity of the impugned
marriage, petitioner respectfully submits that the Court of Appeals committed a
grave reversible error in applying Articles 88 and 101 of the Civil Code,
despite the fact that the circumstances of this case are different from that
contemplated and intended by law, or has otherwise decided a question of
substance not theretofore decided by the Supreme Court, or has decided it in a
manner probably not in accord with law or with the applicable decisions of this
Honorable Court;

2. That in setting aside and reversing the Summary Judgment and, in lieu thereof,
entering another remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that the Court of Appeals
committed a serious reversible error in applying Section 1, Rule 19 (now
Section 1, Rule 34) of the Rules of Court providing for judgment on the
pleadings, instead of Rule 35 governing Summary Judgments;

3. That in reversing and setting aside the Summary Judgment and, in lieu thereof,
entering another remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that the Court of
Appeals committed grave abuse of discretion, disregarded judicial admissions,
made findings on ground of speculations, surmises, and conjectures, or
otherwise committed misapplications of the laws and misapprehension of the
facts.[9] (Underscoring supplied)

Essentially, the Court is tasked to resolve whether a marriage may be declared void ab
initio through a judgment on the pleadings or a summary judgment and without the
benefit of a trial. But there are other procedural issues, including the capacity of one
who is not a spouse in bringing the action for nullity of marriage.

Our Ruling

I. The grounds for declaration of absolute nullity of marriage must be proved.

Neither judgment on the pleadings nor summary judgment is allowed. So is
confession of judgment disallowed.

Petitioner faults the CA in applying Section 1, Rule 19[10] of the Revised Rules of
Court, which provides:

SECTION 1. Judgment on the pleadings. – Where an answer fails to tender an issue,

or otherwise admits the material allegations of the adverse party's pleading, the court
may, on motion of that party, direct judgment on such pleading. But in actions for
annulment of marriage or for legal separation, the material facts alleged in the
complaint shall always be proved.

He argues that the CA should have applied Rule 35 of the Rules of Court governing
summary judgment, instead of the rule on judgment on the pleadings.

Petitioner is misguided. The CA did not limit its finding solely within the provisions
of the Rule on judgment on the pleadings. In disagreeing with the trial court, the CA
likewise considered the provisions on summary judgments, to wit:

Moreover, even if We are to sustain the applicability of the rules on summary

judgment to the case at bench, Our perusal of the record shows that the finding of the
court a quo for appellee would still not be warranted. x x x[11]

But whether it is based on judgment on the pleadings or summary judgment, the CA

was correct in reversing the summary judgment rendered by the trial court. Both the
rules on judgment on the pleadings and summary judgments have no place in cases of
declaration of absolute nullity of marriage and even in annulment of marriage.

With the advent of A.M. No. 02-11-10-SC, known as "Rule on Declaration of

Absolute Nullity of Void Marriages and Annulment of Voidable Marriages," the
question on the application of summary judgments or even judgment on the pleadings
in cases of nullity or annulment of marriage has been stamped with clarity. The
significant principle laid down by the said Rule, which took effect on March 15,
2003[12] is found in Section 17, viz.:

SEC. 17. Trial. – (1) The presiding judge shall personally conduct the trial of the
case. No delegation of evidence to a commissioner shall be allowed except as to
matters involving property relations of the spouses.

(2) The grounds for declaration of absolute nullity or annulment of marriage must be

proved. No judgment on the pleadings, summary judgment, or confession of
judgment shall be allowed. (Underscoring supplied)
Likewise instructive is the Court's pronouncement in Republic v. Sandiganbayan.[13] In
that case, We excluded actions for nullity or annulment of marriage from the
application of summary judgments.

Prescinding from the foregoing discussion, save for annulment of marriage or

declaration of its nullity or for legal separation, summary judgment is applicable to all
kinds of actions.[14] (Underscoring supplied)

By issuing said summary judgment, the trial court has divested the State of its lawful
right and duty to intervene in the case. The participation of the State is not terminated
by the declaration of the public prosecutor that no collusion exists between the parties.
The State should have been given the opportunity to present controverting evidence
before the judgment was rendered.[15]

Both the Civil Code and the Family Code ordain that the court should order the
prosecuting attorney to appear and intervene for the State. It is at this stage when the
public prosecutor sees to it that there is no suppression of evidence. Concomitantly,
even if there is no suppression of evidence, the public prosecutor has to make sure that
the evidence to be presented or laid down before the court is not fabricated.

To further bolster its role towards the preservation of marriage, the Rule on
Declaration of Absolute Nullity of Void Marriages reiterates the duty of the public
prosecutor, viz.:

SEC. 13. Effect of failure to appear at the pre-trial. – (a) x x x

(b) x x x If there is no collusion, the court shall require the public prosecutor to
intervene for the State during the trial on the merits to prevent suppression or
fabrication of evidence. (Underscoring supplied)

Truly, only the active participation of the public prosecutor or the Solicitor General
will ensure that the interest of the State is represented and protected in proceedings for
declaration of nullity of marriages by preventing the fabrication or suppression of
evidence.[16]

II. A petition for declaration of absolute nullity of void marriage may be filed
solely by the husband or wife. Exceptions: (1) Nullity of marriage cases
commenced before the effectivity of A.M. No. 02-11-10 -SC; and (2) Marriages
celebrated during the effectivity of the Civil Code.

Under the Rule on Declaration of Absolute Nullity of Void Marriages and

Annulment of Voidable Marriages, the petition for declaration of absolute nullity of
marriage may not be filed by any party outside of the marriage. The Rule made it
exclusively a right of the spouses by stating:

SEC. 2. Petition for declaration of absolute nullity of void marriages. –

(a) Who may file. – A petition for declaration of absolute nullity of void marriage may
be filed solely by the husband or the wife. (Underscoring supplied)

Section 2(a) of the Rule makes it the sole right of the husband or the wife to file a
petition for declaration of absolute nullity of void marriage. The rationale of the Rule
is enlightening, viz.:

Only an aggrieved or injured spouse may file a petition for annulment of voidable

marriages or declaration of absolute nullity of void marriages. Such petition cannot be
filed by compulsory or intestate heirs of the spouses or by the State. The Committee is
of the belief that they do not have a legal right to file the petition. Compulsory or
intestate heirs have only inchoate rights prior to the death of their predecessor, and,
hence, can only question the validity of the marriage of the spouses upon the death of
a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in
the regular courts. On the other hand, the concern of the State is to preserve marriage
and not to seek its dissolution.[17] (Underscoring supplied)

The new Rule recognizes that the husband and the wife are the sole architects of a
healthy, loving, peaceful marriage. They are the only ones who can decide when and
how to build the foundations of marriage. The spouses alone are the engineers of their
marital life. They are simultaneously the directors and actors of their matrimonial
true-to-life play. Hence, they alone can and should decide when to take a cut, but only
in accordance with the grounds allowed by law.

The innovation incorporated in A.M. No. 02-11-10-SC sets forth a demarcation line

between marriages covered by the Family Code and those solemnized under the Civil
Code. The Rule extends only to marriages entered into during the effectivity of the
Family Code which took effect on August 3, 1988.[18]

The advent of the Rule on Declaration of Absolute Nullity of Void Marriages marks
the beginning of the end of the right of the heirs of the deceased spouse to bring a
nullity of marriage case against the surviving spouse. But the Rule never intended to
deprive the compulsory or intestate heirs of their successional rights.

While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute

nullity of marriage may be filed solely by the husband or the wife, it does not mean
that the compulsory or intestate heirs are without any recourse under the law. They
can still protect their successional right, for, as stated in the Rationale of the Rules on
Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void
Marriages, compulsory or intestate heirs can still question the validity of the marriage
of the spouses, not in a proceeding for declaration of nullity but upon the death of a
spouse in a proceeding for the settlement of the estate of the deceased spouse filed in
the regular courts.[19]

It is emphasized, however, that the Rule does not apply to cases already commenced
before March 15, 2003 although the marriage involved is within the coverage of the
Family Code. This is so, as the new Rule which became effective on March 15,
2003[20] is prospective in its application. Thus, the Court held in Enrico v. Heirs of
Sps. Medinaceli,[21] viz.:

As has been emphasized, A.M. No. 02-11-10-SC covers marriages under the Family
Code of the Philippines, and is prospective in its application.[22] (Underscoring
supplied)

Petitioner commenced the nullity of marriage case against respondent Felicidad in

1995. The marriage in controversy was celebrated on May 14, 1962. Which law would
govern depends upon when the marriage took place.[23]

The marriage having been solemnized prior to the effectivity of the Family Code, the
applicable law is the Civil Code which was the law in effect at the time of its
celebration.[24] But the Civil Code is silent as to who may bring an action to declare the
marriage void. Does this mean that any person can bring an action for the declaration
of nullity of marriage?

We respond in the negative. The absence of a provision in the Civil Code cannot be
construed as a license for any person to institute a nullity of marriage case. Such
person must appear to be the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit.[25] Elsewise stated,
plaintiff must be the real party-in-interest. For it is basic in procedural law that every
action must be prosecuted and defended in the name of the real party-in-interest. [26]

Interest within the meaning of the rule means material interest or an interest in issue to
be affected by the decree or judgment of the case, as distinguished from mere
curiosity about the question involved or a mere incidental interest. One
having no material interest to protect cannot invoke the jurisdiction of the court as
plaintiff in an action. When plaintiff is not the real party-in-interest, the case is
dismissible on the ground of lack of cause of action.[27]
Illuminating on this point is Amor-Catalan v. Court of Appeals,[28] where the Court
held:

True, under the New Civil Code which is the law in force at the time the respondents
were married, or even in the Family Code, there is no specific provision as to who can
file a petition to declare the nullity of marriage; however, only a party who can
demonstrate "proper interest"  can file the same. A petition to declare the nullity of
marriage, like any other actions,  must be prosecuted or defended  in the name of the
real party-in-interest  and must be based on a  cause of action. Thus, in Niñal v.
Badayog,  the Court held that the children have the personality to file the petition to
declare the nullity of marriage of their deceased father to their stepmother as it affects
their successional rights.

xxxx

In fine, petitioner's personality to file the petition to declare the nullity of marriage
cannot be ascertained because of the absence of the divorce decree and the foreign law
allowing it. Hence, a remand of the case to the trial court for reception of additional
evidence is necessary to determine whether respondent Orlando was granted a divorce
decree and whether the foreign law which granted the same allows or restricts
remarriage. If it is proved that a valid divorce decree was obtained and the same did
not allow respondent Orlando's remarriage, then the trial court should declare
respondent's marriage as bigamous and void ab initio but reduced the amount of
moral damages from P300,000.00 to P50,000.00 and exemplary damages from
P200,000.00 to P25,000.00. On the contrary, if it is proved that a valid divorce decree
was obtained which allowed Orlando to remarry, then the trial court must dismiss the
instant petition to declare nullity of marriage on the ground that petitioner Felicitas
Amor-Catalan lacks legal personality to file the same.[29] (Underscoring supplied)

III. The case must be remanded to determine whether or not petitioner is a real-
party-in-interest to seek the declaration of nullity of the marriage in controversy.

In the case at bench, the records reveal that when Teofilo died intestate in 1992, his
only surviving compulsory heirs are respondent Felicidad and their son, Teofilo II.
Under the law on succession, successional rights are transmitted from the moment of
death of the decedent and the compulsory heirs are called to succeed by operation of
law.[30]

Upon Teofilo's death in 1992, all his property, rights and obligations to the extent of
the value of the inheritance are transmitted to his compulsory heirs. These heirs were
respondents Felicidad and Teofilo II, as the surviving spouse and child, respectively.
Article 887 of the Civil Code outlined who are compulsory heirs, to wit: 

(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
 
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
 
(3) The widow or widower;
 
(4) Acknowledged natural children, and natural children by legal fiction;
 
(5) Other illegitimate children referred to in Article 287 of the Civil Code.[31]
Clearly, a brother is not among those considered as compulsory heirs. But although a
collateral relative, such as a brother, does not fall within the ambit of a compulsory
heir, he still has a right to succeed to the estate. Articles 1001 and 1003 of the New
Civil Code provide:

ART. 1001. Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the inheritance and the brothers and
sisters or their children to the other half.

ART. 1003. If there are no descendants, ascendants, illegitimate children, or a

surviving spouse, the collateral relatives shall succeed to the entire estate of the
deceased in accordance with the following articles. (Underscoring supplied)

Indeed, only the presence of descendants, ascendants or illegitimate children excludes

collateral relatives from succeeding to the estate of the decedent. The presence of
legitimate, illegitimate, or adopted child or children of the deceased precludes
succession by collateral relatives.[32] Conversely, if there are no descendants,
ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall
succeed to the entire estate of the decedent.[33]

If respondent Teofilo II is declared and finally proven not to be the legitimate,

illegitimate, or adopted son of Teofilo, petitioner would then have a personality to
seek the nullity of marriage of his deceased brother with respondent Felicidad. This is
so, considering that collateral relatives, like a brother and sister, acquire successional
right over the estate if the decedent dies without issue and without ascendants in the
direct line.

The records reveal that Teofilo was predeceased by his parents. He had no other
siblings but petitioner. Thus, if Teofilo II is finally found and proven to be not a
legitimate, illegitimate, or adopted son of Teofilo, petitioner succeeds to the other half
of the estate of his brother, the first half being allotted to the widow pursuant to
Article 1001 of the New Civil Code. This makes petitioner a real-party-interest to seek
the declaration of absolute nullity of marriage of his deceased brother with respondent
Felicidad. If the subject marriage is found to be void ab initio, petitioner succeeds to
the entire estate.

It bears stressing, however, that the legal personality of petitioner to bring the nullity
of marriage case is contingent upon the final declaration that Teofilo II is not a
legitimate, adopted, or illegitimate son of Teofilo.

If Teofilo II is proven to be a legitimate, illegitimate, or legally adopted son of

Teofilo, then petitioner has no legal personality to ask for the nullity of marriage of his
deceased brother and respondent Felicidad. This is based on the ground that he
has no successional right to be protected, hence, does not have proper interest. For
although the marriage in controversy may be found to be void from the beginning,
still, petitioner would not inherit. This is because the presence of descendant,
illegitimate,[34] or even an adopted child[35] excludes the collateral relatives from
inheriting from the decedent.

Thus, the Court finds that a remand of the case for trial on the merits to determine the
validity or nullity of the subject marriage is called for. But the RTC is strictly
instructed to dismiss the nullity of marriage case for lack of cause of action if it is
proven by evidence that Teofilo II is a legitimate, illegitimate, or legally adopted
son of Teofilo Carlos, the deceased brother of petitioner.

IV. Remand of the case regarding the question of filiation of respondent Teofilo

II is proper and in order. There is a need to vacate the disposition of the trial
court as to the other causes of action before it.

Petitioner did not assign as error or interpose as issue the ruling of the CA on the
remand of the case concerning the filiation of respondent Teofilo II. This
notwithstanding, We should not leave the matter hanging in limbo.
This Court has the authority to review matters not specifically raised or assigned as
error by the parties, if their consideration is necessary in arriving at a just resolution of
the case.[36]

We agree with the CA that without trial on the merits having been conducted in the
case, petitioner's bare allegation that respondent Teofilo II was adopted from an
indigent couple is insufficient to support a total forfeiture of rights arising from his
putative filiation. However, We are not inclined to support its pronouncement that the
declaration of respondent Felicidad as to the illegitimate filiation of respondent
Teofilo II is more credible. For the guidance of the appellate court, such declaration of
respondent Felicidad should not be afforded credence. We remind the CA of the
guaranty provided by Article 167 of the Family Code to protect the status of
legitimacy of a child, to wit:

ARTICLE 167. The child shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced as an adulteress.
(Underscoring supplied)

It is stressed that Felicidad's declaration against the legitimate status of Teofilo II is

the very act that is proscribed by Article 167 of the Family Code. The language of the
law is unmistakable. An assertion by the mother against the legitimacy of her child
cannot affect the legitimacy of a child born or conceived within a valid marriage. [37]

Finally, the disposition of the trial court in favor of petitioner for causes of action
concerning reconveyance, recovery of property, and sum of money must be vacated.
This has to be so, as said disposition was made on the basis of its finding that the
marriage in controversy was null and void ab initio.

WHEREFORE, the appealed Decision is MODIFIED as follows:

1. The case is REMANDED to the Regional Trial Court in regard to the action on
the status and filiation of respondent Teofilo Carlos II and the validity or
nullity of marriage between respondent Felicidad Sandoval and the late Teofilo
Carlos;

2. If Teofilo Carlos II is proven to be the legitimate, or illegitimate, or legally

adopted son of the late Teofilo Carlos, the RTC is
strictly INSTRUCTED to DISMISS the action for nullity of marriage for lack
of cause of action;

3. The disposition of the RTC in Nos. 1 to 8 of the fallo of its decision

is VACATED AND SET ASIDE.
The Regional Trial Court is ORDERED to conduct trial on the merits with dispatch
and to give this case priority in its calendar.

No costs.
SO ORDERED.

[ G.R. No. 174238, July 07, 2009 ]

 ANITA CHENG VS. SPOUSES WILLIAM SY AND TESSIE SY

DECISION

NACHURA, J.: 

This is a petition[1] for review on certiorari under Rule 45 of the Rules of Court of the

Order dated January 2, 2006[2] of the Regional Trial Court (RTC), Branch 18, Manila
in Civil Case No. 05-112452 entitled Anita Cheng v. Spouses William Sy and Tessie
Sy.

The antecedents are as follows--

Petitioner Anita Cheng filed two (2) estafa cases before the RTC, Branch 7, Manila
against respondent spouses William and Tessie Sy (Criminal Case No. 98-969952
against Tessie Sy and Criminal Case No. 98-969953 against William Sy) for issuing to
her Philippine Bank of Commerce (PBC) Check Nos. 171762 and 71860 for
P300,000.00 each, in payment of their loan, both of which were dishonored upon
presentment for having been drawn against a closed account.

Meanwhile, based on the same facts, petitioner, on January 20, 1999, filed against
respondents two (2) cases for violation of Batas Pambansa Bilang (BP Blg.) 22 before
the Metropolitan Trial Court (MeTC), Branch 25, Manila (Criminal Case Nos.
341458-59).

On March 16, 2004, the RTC, Branch 7, Manila dismissed the estafa cases for failure
of the prosecution to prove the elements of the crime. The Order dismissing Criminal
Case No. 98-969952 contained no declaration as to the civil liability of Tessie Sy.
[3]
 On the other hand, the Order in Criminal Case No. 98-969953 contained a
statement, "Hence, if there is any liability of the accused, the same is purely `civil,' not
criminal in nature."[4]

Later, the MeTC, Branch 25, Manila, dismissed, on demurrer, the BP Blg. 22 cases in
its Order[5] dated February 7, 2005 on account of the failure of petitioner to identify
the accused respondents in open court. The Order also did not make any
pronouncement as to the civil liability of accused respondents.

On April 26, 2005, petitioner lodged against respondents before the RTC, Branch 18,
Manila, a complaint[6] for collection of a sum of money with damages (Civil Case No.
05-112452) based on the same loaned amount of P600,000.00 covered by the two
PBC checks previously subject of the estafa and BP Blg. 22 cases.

In the assailed Order[7] dated January 2, 2006, the RTC, Branch 18, Manila, dismissed
the complaint for lack of jurisdiction, ratiocinating that the civil action to collect the
amount of P600,000.00 with damages was already impliedly instituted in the BP Blg.
22 cases in light of Section 1, paragraph (b) of Rule 111 of the Revised Rules of
Court.

Petitioner filed a motion for reconsideration[8] which the court denied in its

Order[9] dated June 5, 2006. Hence, this petition, raising the sole legal issue -

Whether or not Section 1 of Rule 111 of the 2000 Rules of Criminal Procedure and
Supreme Court Circular No. 57-97 on the Rules and Guidelines in the filing and
prosecution of criminal cases under BP Blg. 22 are applicable to the present case
where the nature of the order dismissing the cases for bouncing checks against the
respondents was [based] on the failure of the prosecution to identify both the accused
(respondents herein)?[10]

Essentially, petitioner argues that since the BP Blg. 22 cases were filed on January 20,
1999, the 2000 Revised Rules on Criminal Procedure promulgated on December 1,
2000 should not apply, as it must be given only prospective application. She further
contends that that her case falls within the following exceptions to the rule that the
civil action correspondent to the criminal action is deemed instituted with the latter--

(1) additional evidence as to the identities of the accused is necessary for the
resolution of the civil aspect of the case;

(2) a separate complaint would be just as efficacious as or even more expedient than a
timely remand to the trial court where the criminal action was decided for further
hearings on the civil aspect of the case;

(3) the trial court failed to make any pronouncement as to the civil liability of the
accused amounting to a reservation of the right to have the civil liability litigated in a
separate action;

(4) the trial court did not declare that the facts from which the civil liability might
arise did not exist;

(5) the civil complaint is based on an obligation ex-contractu and not ex-

delicto pursuant to Article 31[11] of the Civil Code; and
(6) the claim for civil liability for damages may be had under Article 29[12] of the Civil
Code.

Petitioner also points out that she was not assisted by any private prosecutor in the BP
Blg. 22 proceedings.

The rule is that upon the filing of the estafa and BP Blg. 22 cases against respondents,
where the petitioner has not made any waiver, express reservation to litigate
separately, or has not instituted the corresponding civil action to collect the amount of
P600,000.00 and damages prior to the criminal action, the civil action is deemed
instituted with the criminal cases.[13]

This rule applies especially with the advent of the 2000 Revised Rules on Criminal
Procedure. Thus, during the pendency of both the estafa and the BP Blg. 22 cases, the
action to recover the civil liability was impliedly instituted and remained pending
before the respective trial courts. This is consonant with our ruling in Rodriguez v.
Ponferrada[14] that the possible single civil liability arising from the act of issuing a
bouncing check can be the subject of both civil actions deemed instituted with the
estafa case and the prosecution for violation of BP Blg. 22, simultaneously available
to the complaining party, without traversing the prohibition against forum shopping.
[15]
 Prior to the judgment in either the estafa case or the BP Blg. 22 case, petitioner, as
the complainant, cannot be deemed to have elected either of the civil actions both
impliedly instituted in the said criminal proceedings to the exclusion of the other.[16]

The dismissal of the estafa cases for failure of the prosecution to prove the elements of
the crime beyond reasonable doubt--where in Criminal Case No. 98-969952 there
was no pronouncement as regards the civil liability of the accused and in Criminal
Case No. 98-969953 where the trial court declared that the liability of the accused was
only civil in nature--produced the legal effect of a reservation by the petitioner of her
right to litigate separately the civil action impliedly instituted with the estafa cases,
following Article 29 of the Civil Code.[17]

However, although this civil action could have been litigated separately on account of
the dismissal of the estafa cases on reasonable doubt, the petitioner was deemed to
have also elected that such civil action be prosecuted together with the BP Blg. 22
cases in light of the Rodriguez v. Ponferrada ruling.

With the dismissal of the BP Blg. 22 cases for failure to establish the identity of the
accused, the question that arises is whether such dismissal would have the same legal
effect as the dismissed estafa cases. Put differently, may petitioner's action to recover
respondents' civil liability be also allowed to prosper separately after the BP Blg. 22
cases were dismissed?

Section 1 (b), Rule 111 of the 2000 Revised Rules on Criminal Procedure states -

Section 1. Institution of criminal and civil actions. -

xxx

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to
include the corresponding civil action. Noreservation to file such civil action
separately shall be allowed.

Upon filing of the joint criminal and civil actions, the offended party shall pay in full
the filing fees based on the amount of the check involved, which shall be considered
as the actual damages claimed. Where the complaint or information also seeks to
recover liquidated, moral, nominal, temperate or exemplary damages, the offended
party shall pay the filing fees based on the amounts alleged therein. If the amounts are
not so alleged but any of these damages [is] subsequently awarded by the court, the
filing fees based on the amount awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application with the
court trying the latter case. If the application is granted, the trial of both actions shall
proceed in accordance with section 2 of this Rule governing consolidation of the civil
and criminal actions.

Petitioner is in error when she insists that the 2000 Rules on Criminal Procedure
should not apply because she filed her BP Blg. 22 complaints in 1999. It is now settled
that rules of procedure apply even to cases already pending at the time of their
promulgation. The fact that procedural statutes may somehow affect the litigants'
rights does not preclude their retroactive application to pending actions. It is axiomatic
that the retroactive application of procedural laws does not violate any right of a
person who may feel that he is adversely affected, nor is it constitutionally
objectionable. The reason for this is that, as a general rule, no vested right may attach
to, nor arise from, procedural laws.[18]

Indeed, under the present revised Rules, the criminal action for violation of BP Blg.
22 includes the corresponding civil action to recover the amount of the checks. It
should be stressed, this policy is intended to discourage the separate filing of the civil
action. In fact, the Rules even prohibits the reservation of a separate civil action, i.e.,
one can no longer file a separate civil case after the criminal complaint is filed in
court. The only instance when separate proceedings are allowed is when the civil
action is filed ahead of the criminal case. Even then, the Rules encourages the
consolidation of the civil and criminal cases. Thus, where petitioner's rights may be
fully adjudicated in the proceedings before the court trying the BP Blg. 22 cases,
resort to a separate action to recover civil liability is clearly unwarranted on account
of res judicata, for failure of petitioner to appeal the civil aspect of the cases. In view
of this special rule governing actions for violation of BP Blg. 22, Article 31 of the
Civil Code is not applicable.[19]

Be it remembered that rules governing procedure before the courts, while not cast in
stone, are for the speedy, efficient, and orderly dispensation of justice and should
therefore be adhered to in order to attain this objective.[20]

However, in applying the procedure discussed above, it appears that petitioner would
be left without a remedy to recover from respondents the P600,000.00 allegedly
loaned from her. This could prejudice even the petitioner's Notice of Claim involving
the same amount filed in Special Proceedings No. 98-88390 (Petition for Voluntary
Insolvency by Kolin Enterprises, William Sy and Tessie Sy), which case was
reportedly archived for failure to prosecute the petition for an unreasonable length of
time.[21] Expectedly, respondents would raise the same defense that petitioner had
already elected to litigate the civil action to recover the amount of the checks along
with the BP Blg. 22 cases.

It is in this light that we find petitioner's contention that she was not assisted by a
private prosecutor during the BP Blg. 22 proceedings critical. Petitioner indirectly
protests that the public prosecutor failed to protect and prosecute her cause when he
failed to have her establish the identities of the accused during the trial and when he
failed to appeal the civil action deemed impliedly instituted with the BP Blg. 22 cases.
On this ground, we agree with petitioner.

Faced with the dismissal of the BP Blg. 22 cases, petitioner's recourse pursuant to the
prevailing rules of procedure would have been to appeal the civil action to recover the
amount loaned to respondents corresponding to the bounced checks. Hence, the said
civil action may proceed requiring only a preponderance of evidence on the part of
petitioner. Her failure to appeal within the reglementary period was tantamount to a
waiver altogether of the remedy to recover the civil liability of respondents. However,
due to the gross mistake of the prosecutor in the BP Blg. 22 cases, we are constrained
to digress from this rule.

It is true that clients are bound by the mistakes, negligence and omission of their
counsel.[22] But this rule admits of exceptions - (1) where the counsel's mistake is so
great and serious that the client is prejudiced and denied his day in court, or (2) where
the counsel is guilty of gross negligence resulting in the client's deprivation of liberty
or property without due process of law.[23] Tested against these guidelines, we hold
that petitioner's lot falls within the exceptions.

It is an oft-repeated exhortation to counsels to be well-informed of existing laws and

rules and to keep abreast with legal developments, recent enactments and
jurisprudence. Unless they faithfully comply with such duty, they may not be able to
discharge competently and diligently their obligations as members of the Bar.
[24]
 Further, lawyers in the government service are expected to be more conscientious
in the performance of their duties as they are subject to public scrutiny. They are not
only members of the Bar but are also public servants who owe utmost fidelity to
public service.[25] Apparently, the public prosecutor neglected to equip himself with
the knowledge of the proper procedure for BP Blg. 22 cases under the 2000 Rules on
Criminal Procedure such that he failed to appeal the civil action impliedly instituted
with the BP Blg. 22 cases, the only remaining remedy available to petitioner to be able
to recover the money she loaned to respondents, upon the dismissal of the criminal
cases on demurrer. By this failure, petitioner was denied her day in court to prosecute
the respondents for their obligation to pay their loan.

Moreover, we take into consideration the trial court's observation when it dismissed
the estafa charge in Criminal Case No. 98-969953 that if there was any liability on the
part of respondents, it was civil in nature. Hence, if the loan be proven true, the
inability of petitioner to recover the loaned amount would be tantamount to unjust
enrichment of respondents, as they may now conveniently evade payment of their
obligation merely on account of a technicality applied against petitioner.

There is unjust enrichment when (1) a person is unjustly benefited, and (2) such
benefit is derived at the expense of or with damages to another. This doctrine simply
means that a person shall not be allowed to profit or enrich himself inequitably at
another's expense. One condition for invoking this principle of unjust enrichment is
that the aggrieved party has no other recourse based on contract, quasi-contract, crime,
quasi-delict or any other provision of law.[26]

Court litigations are primarily designed to search for the truth, and a liberal
interpretation and application of the rules which will give the parties the fullest
opportunity to adduce proof is the best way to ferret out the truth. The dispensation of
justice and vindication of legitimate grievances should not be barred by technicalities.
[27]
 For reasons of substantial justice and equity, as the complement of the legal
jurisdiction that seeks to dispense justice where courts of law, through the inflexibility
of their rules and want of power to adapt their judgments to the special circumstances
of cases, are incompetent to do so,[28] we thus rule, pro hac vice, in favor of petitioner.

WHEREFORE, the petition is GRANTED. Civil Case No. 05-112452 entitled Anita

Cheng v. Spouses William Sy and Tessie Sy is hereby
ordered REINSTATED. No pronouncement as to costs.

SO ORDERED.

[ G.R. No. 189649, April 20, 2015 ]

ADORACION CAROLINO (SPOUSE AND IN SUBSTITUTION OF THE
DECEASED JEREMIAS A. CAROLINO VS. GEN. GENEROSO SENGA
DECISION

PERALTA, J.: 

Before us is a petition for review under Rule 45 seeking to reverse and set aside the
Decision[1] dated May 25, 2009 of the Court of Appeals (CA) in CA-G.R. SP No.
103502 and the Resolution[2] dated September 10, 2009 denying reconsideration
thereof.

The factual and legal antecedents are as follows:

On December 1, 1976, Jeremias A. Carolino, petitioner's husband, retired [3] from the

Armed Forces of the Philippines (AFP) with the rank of Colonel under General
Order No. 1208 dated November 29, 1976, pursuant to the provisions of Sections 1(A)
and 10 of Republic Act (RA) No. 340,[4] as amended. He started receiving his monthly
retirement pay in the amount of P18,315.00 in December 1976 until the same was
withheld by respondents in March 2005. On June 3, 2005, Jeremias wrote a
letter[5] addressed to the AFP Chief of Staff asking for the reasons of the withholding
of his retirement pay. In a letter reply,[6] Myrna F. Villaruz, LTC (FS) PA, Pension and
Gratuity Officer of the AFP Finance Center, informed Jeremias that his loss of
Filipino citizenship caused the deletion of his name in the alpha list of the AFP
Pensioners' Payroll effective March 5, 2005; and that he could avail of re-entitlement
to his retirement benefits and the restoration of his name in the AFP Pensioners'
Masterlist Payroll by complying with the requirements prescribed under RA No. 9225,
or the Dual Citizenship Act.

It appeared that the termination of Jeremias' pension was done pursuant to Disposition
Form[7] dated October 29, 2004, which was approved by the Chief of Staff and made
effective in January 2005. In the said Disposition Form, the AFP Judge Advocate
General opined that under the provisions of Sections 4, 5, and 6 of RA No. 340,
retired military personnel are disqualified from receiving pension benefits once
incapable to render military service as a result of his having sworn allegiance to a
foreign country. It was also mentioned that termination of retirement benefits of
pensioner of the AFP could be done pursuant to the provisions of Presidential Decree
(PD) No. 1638[8]which provides that the name of a retiree who loses his Filipino
citizenship shall be removed from the retired list and his retirement benefits
terminated upon such loss. It being in consonance with the policy consideration that
all retirement laws inconsistent with the provisions of PD No. 1638 are repealed and
modified accordingly.

On August 24, 2006, Jeremias filed with the Regional Trial Court (RTC) of Quezon
City, a Petition for Mandamus[9] against Gen. Generoso Senga, as Chief of Staff of the
AFP, Brig. Gen. Fernando Zabat, as Chief of the AFP Finance Center, Comm.
Reynaldo Basilio, as Chief of the AFP-GHQ Management and Fiscal Office, and
Comm. Emilio Marayag, Pension and Gratuity Management Officer, Pension and
Gratuity Management Center, AFP Finance Center, seeking reinstatement of his name
in the list of the AFP retired officers, resumption of payment of his retirement benefits
under RA No. 340, and the reimbursement of all his retirement pay and benefits which
accrued from March 5, 2005 up to the time his name is reinstated and, thereafter, with
claim for damages and attorney's fees. The case was docketed as Civil Case No. Q-06-
58686, and raffled off to Branch 220.

On February 26, 2007, the RTC rendered its Decision[10] granting the petition for
mandamus, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered ordering General Hermogenes Esperon,

Jr., as Chief of Staff of the AFP, Brigadier General Fernando Zabat, as the
Commanding Officer of the AFP Finance Center, Commodore Reynaldo Basilio, as
Chief of the AFP-GFIQ Management and Fiscal Office, and Captain Theresa M.
Nicdao, as Pension and Gratuity Officer of the Pension and Gratuity Management
Center, or any of their respective successors and those taking instructions from them
as agents or subordinates, to:

a. immediately reinstate the name of petitioner in the list of retired AFP Officers,
and to resume payment of his retirement benefits under RA 340; and

b. release to [petitioner] all retirement benefits due him under RA 340 which
accrued to him from March 2005 continuously up to the time his name is
reinstated in the list of AFP retired officers.[11]

The RTC found that the issue for resolution is the applicability of RA No. 340 and
PD No. 1638 upon Jeremias' retirement benefits. It found that he retired as a
commissioned officer of the AFP in 1976; thus, RANo. 340 is the law applicable in
determining his entitlement to his retirement benefits and not PD No. 1638 which was
issued only in 1979. Article 4 of the Civil Code provides that "laws shall
have noretroactive effect unless the contrary is provided." PD No. 1638 does not
provide for such retroactive application. Also, it could not have been the intendment
of PD No. 1638 to deprive its loyal soldiers of a monthly pension during their old age
especially where, as here, the right had been vested to them through time. RA No. 340
does not provide that the loss of Filipino citizenship would terminate one's retirement
benefits; and that PD No. 1638 does not reduce whatever benefits that any person has
already been receiving under existing law.

Respondents sought reconsideration,[12]  but the RTC denied the same in an

Order[13] dated May 25, 2007, the decretal portion of which reads:

WHEREFORE, premises considered, the instant Motion for Reconsideration is

hereby DENIED, considering that the questioned decision has not yet attained.its
finality. The Motion for Execution in the meantime is hereby DENIED.[14]

Aggrieved, respondents elevated the case to the CA. After the submission of the
parties' respective memoranda, the case was submitted for decision.

Jeremias died on September 30, 2007[15] and was substituted by his wife, herein
petitioner.

On May 25, 2009, the CA granted respondents' appeal. The dispositive portion of the
CA decision reads:

WHEREFORE, premises considered, the instant appeal is GRANTED. The

appealed decision is REVOKED and SET ASIDE.[16]

In so ruling, the CA found that while it is true that Jeremias retired in 1976 under the
provisions of RA No. 340, as amended, which does not contain any provision anent
cessation or loss of retirement benefits upon acquiring another citizenship, PD No.
1638, which was signed in 1979, effectively repealed RA No. 340, as amended.
Section 27 of PD No. 1638, which provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired list and his retirement benefits
terminated upon such loss, was correctly made applicable to Jeremias' retirement
benefits. Logic dictates that since Jeremias had already renounced his allegiance to the
Philippines, he cannot now be compelled by the State to render active service and to
render compulsory military service when the need arises. The CA found that for the
writ of mandamus to lie, it is essential that Jeremias should have a clear legal right to
the thing demanded and it must be the imperative duty of respondents to perform the
act required which petitioner failed to show; thus, mandamus will not lie.

Petitioner's motion for reconsideration was denied in a Resolution dated September

10, 2009.

Hence, this petition raising the following:

RESPONDENT COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR IN RENDERING THE ASSAILED DECISION AND RESOLUTION
WHICH SET ASIDE AND REVERSED THE 26 FEBRUARY 2007 DECISION OF
THE QC RTC BECAUSE:

PD 1638 should not have been applied and cannot be used against petitioner as her
husband's retirement and pension were granted to him by the AFP under RA 340
which was not superseded by PD 1638, a later statute.

Petitioner correctly availed of the remedy of mandamus to compel the reinstatement of

his pension and benefits from the AFP under RA 340 as PD 1638 was not applicable
to him.

Petitioner contends that her husband's retirement from the active service in 1976 was
pursuant to the provisions of RA No. No. 340 as PD No. 1638 was not yet in existence
then, and there was nothing in RA No. 340 that disqualifies a retired military
personnel from receiving retirement benefits after acquiring foreign citizenship. The
concept of retirement benefits is such that one is entitled to them for services already
rendered and not for those to be made at a future time. Retirement benefits due
petitioner's husband under RA No. 340, is an acquired right which cannot be taken
away by a subsequent law. PD No. 1638 does not expressly provide for its retroactive
application. Respondents, being officers of the AFP tasked to implement the
provisions of RA No. 340 have neglected their function thereunder by delisting
petitioner's husband as a retiree, thus, mandamus is proper.

In his Comment, the Solicitor General argues that PD No. 1638 applies to all military
personnel in the service of the AFP whether active or retired; hence, it applies
retroactively to petitioner's husband. Even when a retiree is no longer in the active
service, his being a Filipino still makes him a part of the Citizen Armed Forces; that
whether a military personnel retires under the provisions of RA No. 340 or under
PD No. 1638, he is still in the service of the military and/or the State only that he is
retired, thus, they should not be treated differently upon the loss of Filipino
citizenship. He argues when there is an irreconcilable conflict between the two laws of
different vintages, i.e., RA No. 340 and PD No. 1638, the latter enactment prevails.

The Solicitor General argues that mandamus will not issue to enforce a right to
compel compliance with a duty which is questionable or over which a substantial
doubt exists. In this case, petitioner's husband does not have a well-defined, clear and
certain legal right to continuously receive retirement benefits after becoming an
American citizen. Likewise, the AFP does not have a clear and imperative duty to
grant the said benefits considering that Section 27 of PD No. 1638 provides that the
name of a retiree who loses his Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such loss.

Petitioner filed her reply thereto. We find merit in the petition.

Petitioner's husband retired in 1976 under RA No. 340. He was already receiving his
monthly retirement benefit in the amount of P18,315.00 since December 1976 until it
was terminated in March 2005. Section 5, RA No. 340 provides:

Sec. 5. Officers and enlisted men placed in the retired list shall be subject to the rules
and articles of war and to trial by court-martial for any breach thereof. At any time
said officers and enlisted men may be called to active service by the President.
Refusal on the part of any officer or enlisted man to perform such services shall
terminate his right to further participation in the benefits of this Act provided he
resides in the Philippines and is physically fit for service. Such fitness for service shall
be determined by applicable regulations.

The afore-quoted provision clearly shows how a retiree's retirement benefits may be
terminated, i.e., when the retiree refuses to perform active service when called to do so
provided that (1) the retiree resides in the Philippines and (2) is physically fit for
service. There is noother requirement found in the law which would be the reason for
the termination of a retiree's retirement benefits. Petitioner's husband was never called
to perform active service and refused to do so, however, his retirement benefit was
terminated. The reason for such termination was his loss of Filipino citizenship based
on Section 27 of PD No. 1638, to wit:

Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be
carried in the retired list of the Armed Forces of the Philippines. The name of a retiree
who loses his Filipino citizenship shall be removed from the retired list and his
retirement benefits terminated upon such loss.

We find that the CA erred in applying PD No. 1638 to the retirement benefits of
petitioner's husband.

Firstly, PD No. 1638 was signed by then President Ferdinand Marcos on September
10, 1979. Under Article 4 of the Civil Code, it is provided that laws shall
have no retroactive effect, unless the contrary is provided. It is said that the law looks
to the future only and has noretroactive effect unless the legislator may have formally
given that effect to some legal provisions;[17] that all statutes are to be construed as
having only prospective operation, unless the purpose and intention of the legislature
to give them a retrospective effect is expressly declared or is necessarily implied from
the language used; and that every case of doubt must be resolved against retrospective
effect.[18]These principles also apply to amendments of statutes.

PD No. 1638 does not contain any provision regarding its retroactive application, nor
the same may be implied from its language. In fact, Section 36 of PD No. 1638 clearly
provides that the decree shall take effect upon its approval. As held in Parreno v.
COA,[19] there is noquestion that PD No. 1638, as amended, applies prospectively.
Since PD No. 1638, as amended, is about the new system of retirement and separation
from service of military personnel, it should apply to those who were in the service at
the time of its approval.[20] Conversely, PD No. 1638 is not applicable to those who
retired before its effectivity in 1979. The rule is familiar that after an act is amended,
the original act continues to be in force with regard to all rights that had accrued prior
to such amendment.[21]

Moreover, Section 27 of PD No. 1638 specifically provides for the retirees to whom
the law shall be applied, to wit:

Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be

carried in the retired list of the Armed Forces of the Philippines. The name of a retiree
who loses his Filipino citizenship shall be removed from the retired list and his
retirement benefits terminated upon such loss, (emphasis supplied)

Notably, petitioner's husband did not retire under those above-enumerated Sections of
PD No. 1638 as he retired under RA No. 340.

Secondly, it has been held that before a right to retirement benefits or pension vests in
an employee, he must have met the stated conditions of eligibility with respect to the
nature of employment, age, and length of service.[22] Undeniably, petitioner's husband
had complied with the conditions of eligibility to retirement benefits as he was then
receiving his retirement benefits on a monthly basis until it was terminated. Where the
employee retires and meets the eligibility requirements, he acquires a vested right to
the benefits that is protected by the due process clause.[23] It is only upon retirement
that military personnel acquire a vested right to retirement benefits.[24]Retirees enjoy a
protected property interest whenever they acquire a right to immediate payment under
pre-existing law.[25]

In Ayog v. Cusi,[26] we expounded the nature of a vested right, thus:

"A right is vested when the right to enjoyment has become the property of some
particular person or persons as a present interest" (16 C.J.S. 1173). It is "the privilege
to enjoy property legally vested, to enforce contracts, and enjoy the rights of property
conferred by the existing law" (12 C.J.S. 955, Note 46, No. 6) or "some right or
interest in property which has become fixed and established and is no longer open to
doubt or controversy" (Downs vs. Blount 170 Fed. 15, 20, cited in Balboa vs.
Farrales, 51 Phil. 498, 502).

The due process clause prohibits the annihilation of vested rights. "A state may not
impair vested rights by legislative enactment, by the enactment or by the subsequent
repeal of a municipal ordinance, or by a change in the constitution of the State, except
in a legitimate exercise of the police power" (16 C.J.S. 1177-78).

It has been observed that, generally, the term "vested right" expresses the concept of
present fixed interest, which in right reason and natural justice should be protected
against arbitrary State action, or an innately just and imperative right which an
enlightened free society, sensitive to inherent and irrefragable individual rights, cannot
deny (16 C.J.S. 1174, Note 71, No. 5, citing Pennsylvania Greyhound Lines, Inc. vs.
Rosenthal, 192 Atl. 2nd 587).[27]

Petitioner's husband acquired vested right to the payment of his retirement benefits
which must be respected and cannot be affected by the subsequent enactment of
PD No. 1638 which provides that loss of Filipino citizenship terminates retirement
benefits. Vested rights include not only legal or equitable title to the enforcement of a
demand, but also an exemption from new obligations after the right has vested. [28]

In fact, Sections 33 and 35 of PD No. 1638 recognize such vested right, to wit:

Section 33. Nothing in this Decree shall be construed in any manner to reduce
whatever retirement and separation pay or gratuity or other monetary benefits which
any person is heretofore receiving or is entitled to receive under the provisions of
existing law.

xxxx

Section. 35. Except those necessary to give effect to the provisions of this Decree and
to preserve the rights granted to retired or separated military personnel, all laws, rules
and regulations inconsistent with the provisions of this Decree are hereby repealed or
modified accordingly.

Section 33 of PD No. 1638 is clear that the law has no intention to reduce or to revoke
whatever retirement benefits being enjoyed by a retiree at the time of its passage.
Hence, Section 35 provides for an exception to what the decree repealed or
modified, i.e., except those necessary to preserve the rights granted to retired or
separated military personnel.
We also find that the CA erred in finding that mandamus will not lie.

Section 3, Rule 65 of the Rules of Court lay down under what circumstances petition
for mandamus may be filed, to wit:

SEC. 3. Petition for mandamus. - When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled,
and there is no other plain, speedy and adequate remedy in the ordinary course of law,
the person aggrieved thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court, to do the
act required to be done to protect the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of the respondent.

A writ of mandamus can be issued only when petitioner's legal right to the
performance of a particular act which is sought to be compelled is clear and complete.
A clear legal right is a right which is indubitably granted by law or is inferable as a
matter of law.[29] A doctrine well-embedded in our jurisprudence is that mandamus
will issue only when the petitioner has a clear legal right to the performance of the act
sought to be compelled and the respondent has an imperative duty to perform the
same.[30] The remedy of mandamus lies to compel the performance of a ministerial
duty.[31] A purely ministerial act or duty is one that an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of its own judgment upon the propriety or
impropriety of the act done.[32] If the law imposes a duty upon a public officer, and
gives him the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial.[33]

The petition for mandamus filed by petitioner's husband with the RTC was for the
payment of his terminated retirement benefits, which has become vested, and being a
ministerial duty on the part of the respondents to pay such claim, mandamus is the
proper remedy to compel such payment.

The doctrine of exhaustion of administrative remedies calls for resort first to the
appropriate administrative authorities in the resolution of a controversy falling under
their jurisdiction before the same may be elevated to the courts of justice for review.
[34]
 However, the principle of exhaustion of administrative remedies need not be
adhered to when the question is purely legal.[35] This is because issues of law cannot
be resolved with finality by the administrative officer.[36] Appeal to the administrative
officer would only be an exercise in futility.[37] Here, the question raised is purely
legal, i.e., what law should be applied in the payment of retirement benefits of
petitioner's husband. Thus, there was no need to exhaust all administrative remedies
before a judicial relief can be sought.

WHEREFORE, the petition is GRANTED. The Decision dated May 25, 2009 and
the Resolution dated September 10, 2009 of the Court of Appeals are
hereby REVERSED and SET ASIDE. The Decision dated February 26, 2007 of the
Regional Trial Court of Quezon City, Branch 220, is AFFIRMED.
SO ORDERED.

ART. 6
[ G.R. NO. 150429, August 29, 2006 ]
 FAMANILA VS. THE COURT OF APPEALS

DECISION

YNARES-SANTIAGO, J.: 

Before us is a petition for review on certiorari assailing the Decision[1] of the

Court of Appeals in CA-G.R. SP No. 50615 dated March 30, 2001 which affirmed
the Decision[2] of the National Labor Relations Commission (NLRC) dated March
31, 1998 dismissing petitioner's complaint for payment of disability and other
benefits for lack of merit and the Resolution[3] dated October 5, 2001 of the
Court of Appeals denying petitioner's motion for reconsideration.

The antecedent facts are as follows:

In 1989, respondent NFD International Manning Agents, Inc. hired the services
of petitioner Roberto G. Famanila as Messman[4] for Hansa Riga, a vessel
registered and owned by its principal and co-respondent, Barbership
Management Limited.

On June 21, 1990, while Hansa Riga was docked at the port of Eureka,

California, U.S.A. and while petitioner was assisting in the loading operations,
the latter complained of a headache. Petitioner experienced dizziness and he
subsequently collapsed. Upon examination, it was determined that he had a
sudden attack of left cerebral hemorrhage from a ruptured cerebral aneurysm.
[5]
 Petitioner underwent a brain operation and he was confined at the Emmanuel
Hospital in Portland, Oregon, U.S.A. On July 19, 1990, he underwent a second
brain operation.

Owing to petitioner's physical and mental condition, he was repatriated to the

Philippines. On August 21, 1990, he was examined at the American Hospital in
Intramuros, Manila where the examining physician, Dr. Patricia Abesamis
declared that he "cannot go back to sea duty and has been observed for 120
days, he is being declared permanently, totally disabled."[6]

Thereafter, authorized representatives of the respondents convinced him to

settle his claim amicably by accepting the amount of US$13,200.[7] Petitioner
accepted the offer as evidenced by his signature in the Receipt and Release
dated February 28, 1991.[8] His wife, Gloria Famanila and one Richard Famanila,
acted as witnesses in the signing of the release.

On June 11, 1997, petitioner filed a complaint[9] with the NLRC which was
docketed as NLRC OCW Case No. 6-838-97-L praying for an award of disability
benefits, share in the insurance proceeds, moral damages and attorney's fees.
On September 29, 1997, Acting Executive Labor Arbiter Voltaire A. Balitaan
dismissed the complaint on the ground of prescription. Petitioner appealed the
decision with the NLRC. On March 31, 1998, the NLRC promulgated its
decision[10] finding the appeal to be without merit and ordered its dismissal.
When the motion for reconsideration[11] was denied by the NLRC in its resolution
dated June 29, 1998,[12] petitioner filed a petition for certiorari with this Court.
On December 2, 1998, we resolved to refer the case to the Court of Appeals
pursuant to our ruling in St. Martin Funeral Home v. National Labor Relations
Commission.[13]

On March 30, 2001, the Court of Appeals promulgated the assailed decision
which dismissed the petition for lack of merit. Petitioner's motion for
reconsideration was denied, hence, the present petition for review raising the
following issues:

I. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN UPHOLDING THE
VALIDITY OF THE RECEIPT AND RELEASE SINCE PETITIONER'S CONSENT
THERETO WAS VITIATED THEREBY MAKING THE SAME VOID AND
UNENFORCEABLE.

II. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT
THE PRESCRIPTION PERIOD APPLICABLE TO THE CLAIM OF THE
PETITIONER IS THE 3-YEAR PERIOD PROVIDED FOR UNDER THE LABOR
CODE OF THE PHILIPPINES AND NOT THE 10-YEAR PERIOD PROVIDED
FOR UNDER THE CIVIL CODE.

Petitioner claims that he did not sign the Receipt and Release voluntarily or
freely because he was permanently disabled and in financial constraints. These
factors allegedly vitiated his consent which makes the Receipt and Release void
and unenforceable.

The petition lacks merit.

It is fundamental that the scope of the Supreme Court's judicial review under
Rule 45 of the Rules of Court is confined only to errors of law. It does not extend
to questions of fact. More so in labor cases where the doctrine applies with
greater force.[14] The Labor Arbiter and the NLRC have already determined the
factual issues, and these were affirmed by the Court of Appeals. Thus, they are
accorded not only great respect but also finality and are deemed binding upon
this Court so long as they are supported by substantial evidence.[15] We reviewed
the records of the case and we find no reason to deviate from the findings of the
labor arbiter, NLRC and the Court of Appeals.

A vitiated consent does not make a contract void and unenforceable. A vitiated
consent only gives rise to a voidable agreement. Under the Civil Code, the vices
of consent are mistake, violence, intimidation, undue influence or fraud.[16] If
consent is given through any of the aforementioned vices of consent, the
contract is voidable.[17] voidable contract is binding unless annulled by a proper
action in court.[18]

Petitioner contends that his permanent and total disability vitiated his consent to
the Receipt and Release thereby rendering it void and unenforceable. However,
disability is not among the factors that may vitiate consent. Besides, save for
petitioner's self-serving allegations, there is no proof on record that his consent
was vitiated on account of his disability. In the absence of such proof of vitiated
consent, the validity of the Receipt and Release must be upheld. We agree with
the findings of the Court of Appeals that:
In the case at bar, there is nothing in the records to show that petitioner's
consent was vitiated when he signed the agreement. Granting that petitioner has
not fully recovered his health at the time he signed the subject document, the
same cannot still lead to the conclusion that he did not voluntar[il]y accept the
agreement, for his wife and another relative witnessed his signing.

Moreover, the document entitled receipt and release which was attached by
petitioner in his appeal does not show on its face any violation of law or public
policy. In fact, petitioner did not present any proof to show that the
consideration for the same is not reasonable and acceptable. Absent any
evidence to support the same, the Court cannot, on its own accord, decide
against the unreasonableness of the consideration.[19]
It is true that quitclaims and waivers are oftentimes frowned upon and are
considered as ineffective in barring recovery for the full measure of the worker's
right and that acceptance of the benefits therefrom does not amount to
estoppel.[20] The reason is plain. Employer and employee, obviously do not stand
on the same footing.[21] However, not all waivers and quitclaims are invalid as
against public policy. If the agreement was voluntarily entered into and
represents a reasonable settlement, it is binding on the parties and may not
later be disowned simply because of change of mind. It is only where there is
clear proof that the waiver was wangled from an unsuspecting or gullible person,
or the terms of the settlement are unconscionable on its face, that the law will
step in to annul the questionable transaction. But where it is shown that the
person making the waiver did so voluntarily, with full understanding of what he
was doing, and the consideration for the quitclaim is credible and reasonable,
the transaction must be recognized as a valid and binding undertaking,[22] as in
this case. 

To be valid and effective, waivers must be couched in clear and unequivocal

terms, leaving no doubt as to the intention of those giving up a right or a benefit
that legally pertains to them.[23] We have reviewed the terms and conditions
contained in the Receipt and Release and we find the same to be clear and
unambiguous. The signing was even witnessed by petitioner's wife, Gloria T.
Famanila and one Richard T. Famanila. The Receipt and Release provides in
part: 
That for and in consideration of the sum of THIRTEEN THOUSAND TWO
HUNDRED DOLLARS (US$13,200.00) or its equivalent in Philippine currency
THREE HUNDRED SIXTY FIVE THOUSAND NINE HUNDRED FOUR PESOS
(365,904.00), the receipt of which is hereby acknowledged to my full and
complete satisfaction x x x I, ROBERTO G. FAMANILA, x x x hereby remise,
release and forever discharge said vessel "HANSA RIGA", her Owners, operators,
managers, charterers, agents, underwriters, P and I Club, master, officers, and
crew and all parties at interest therein or thereon, whether named or not named,
including but not limited to BARBER SHIP MANAGEMENT LIMITED, NFD
INTERNATIONAL MANNING AGENTS, INC. and ASSURANCEFORENIGEN GARD
from any and all claims, demands, debts, dues, liens, actions or causes of
action, at law or in equity, in common law or in admiralty, statutory or
contractual, arising from and under the laws of the United States of America,
Norway, Hongkong or the Republic of the Philippines and/or any other foreign
country now held, owned or possessed by me or by any person or persons,
arising from or related to or concerning whether directly or indirectly,
proximately or remotely, without being limited to but including the said illness
suffered by me on board the vessel "HANSA RIGA" on or about 21st June 1990 at
Portland, Oregon and disability compensation in connection therewith.

This instrument is a GENERAL RELEASE intended to release all liabilities of any

character and/or claims or damages and/or losses and/or any other liabilities
whatsoever, whether contractual or statutory, at common law or in equity,
tortious or in admiralty, now or henceforth in any way related to or occurring as
a consequence of the illness suffered by me as Messman of the vessel "HANSA
RIGA", including but not limited to all damages and/or losses consisting of loss
of support, loss of earning capacity, loss of all benefits of whatsoever nature and
extent incurred, physical pain and suffering and/or all damages and/or
indemnities claimable in law, tort, contract, common law, equity and/or
admiralty by me or by any person or persons pursuant to the laws of the United
States of America, Norway, Hongkong or the Republic of the Philippines and of
all other countries whatsoever.

I hereby certify that I am of legal age and that I fully understand this instrument
which was read to me in the local dialect and I agree that this is a FULL AND
FINAL RELEASE AND DISCHARGE of all parties and things referred to herein, and
I further agree that this release may be pleaded as an absolute and final bar to
any suit or suits or legal proceedings that may hereafter be prosecuted by me or
by any one claiming by, through, or under me, against any of the persons or
things
referred to or related herein, for any matter or thing referred to or related
herein.[24]
It is elementary that a contract is perfected by mere consent and from that
moment the parties are bound not only to the fulfillment of what has been
expressly stipulated but also to all the consequences which, according to their
nature, may be in keeping with good faith, usage and law.[25] Further, dire
necessity is not an acceptable ground for annulling the Receipt and Release since
it has not been shown that petitioner was forced to sign it.[26]

Regarding prescription, the applicable prescriptive period for the money claims
against the respondents is the three year period pursuant to Article 291 of the
Labor Code which provides that:
ART. 291. Money Claims. – All money claims arising from employer-employee
relations accruing during the effectivity of this Code shall be filed within three
(3) years from the time the cause of action accrued; otherwise they shall be
forever barred.

xxxx
Since petitioner's demand for an award of disability benefits is a money claim
arising from his employment, Article 291 of the Labor Code applies. From the
time petitioner was declared permanently and totally disabled on August 21,
1990 which gave rise to his entitlement to disability benefits up to the time that
he filed the complaint on June 11, 1997, more than three years have elapsed
thereby effectively barring his claim.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

dated March 30, 2001 in CA-G.R. SP No. 50615 which affirmed the Decision of
the National Labor Relations Commission dismissing petitioner's complaint for
disability and other benefits for lack of merit, and the Resolution dated October
5, 2001 denying the motion for reconsideration, are AFFIRMED.

SO ORDERED.

Panganiban, C.J., (Chairperson), Austria-Martinez, Callejo, Sr. and Chico-

Nazario, JJ., concur.

[ G.R. NO. 163707, September 15, 2006 ]

GUY VS. HON. COURT OF APPEALS. 

DECISION

YNARES-SANTIAGO, J.: 

This petition for review on certiorari assails the January 22, 2004 Decision[1] of the
Court of Appeals in CA-G.R. SP No. 79742, which affirmed the Orders dated July 21,
2000[2] and July 17, 2003[3] of the Regional Trial Court of Makati City, Branch 138 in
SP Proc. Case No. 4549 denying petitioner's motion to dismiss; and its May 25, 2004
Resolution[4] denying petitioner's motion for reconsideration.

The facts are as follows:

On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille Oanes
Wei, represented by their mother Remedios Oanes (Remedios), filed a petition for
letters of administration[5] before the Regional Trial Court of Makati City, Branch 138.
The case was docketed as Sp. Proc. No. 4549 and entitled Intestate Estate of Sima Wei
(a.k.a. Rufino Guy Susim).

Private respondents alleged that they are the duly acknowledged illegitimate children
of Sima Wei, who died intestate in Makati City on October 29, 1992, leaving an estate
valued at P10,000,000.00 consisting of real and personal properties. His known heirs
are his surviving spouse Shirley Guy and children, Emy, Jeanne, Cristina, George and
Michael, all surnamed Guy. Private respondents prayed for the appointment of a
regular administrator for the orderly settlement of Sima Wei's estate. They likewise
prayed that, in the meantime, petitioner Michael C. Guy, son of the decedent, be
appointed as Special Administrator of the estate. Attached to private respondents'
petition was a Certification Against Forum Shopping[6] signed by their counsel, Atty.
Sedfrey A. Ordoñez.

In his Comment/Opposition,[7] petitioner prayed for the dismissal of the petition. He

asserted that his deceased father left no debts and that his estate can be settled without
securing letters of administration pursuant to Section 1, Rule 74 of the Rules of Court.
He further argued that private respondents should have established their status as
illegitimate children during the lifetime of Sima Wei pursuant to Article 175 of the
Family Code.

The other heirs of Sima Wei filed a Joint Motion to Dismiss[8] on the ground that the
certification against forum shopping should have been signed by private respondents
and not their counsel. They contended that Remedios should have executed the
certification on behalf of her minor daughters as mandated by Section 5, Rule 7 of the
Rules of Court.

In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss,[9] petitioner

and his co-heirs alleged that private respondents' claim had been paid, waived,
abandoned or otherwise extinguished by reason of Remedios' June 7, 1993 Release
and Waiver of Claim stating that in exchange for the financial and educational
assistance received from petitioner, Remedios and her minor children discharge the
estate of Sima Wei from any and all liabilities.

The Regional Trial Court denied the Joint Motion to Dismiss as well as the
Supplemental Motion to Dismiss. It ruled that while the Release and Waiver of Claim
was signed by Remedios, it had not been established that she was the duly constituted
guardian of her minor daughters. Thus, no renunciation of right occurred. Applying a
liberal application of the rules, the trial court also rejected petitioner's objections on
the certification against forum shopping.

Petitioner moved for reconsideration but was denied. He filed a petition for certiorari
before the Court of Appeals which affirmed the orders of the Regional Trial Court in
its assailed Decision dated January 22, 2004, the dispositive portion of which states:

WHEREFORE, premises considered, the present petition is hereby DENIED DUE

COURSE and accordingly DISMISSED, for lack of merit. Consequently, the assailed
Orders dated July 21, 2000 and July 17, 2003 are hereby both AFFIRMED.
Respondent Judge is hereby DIRECTED to resolve the controversy over the
illegitimate filiation of the private respondents (sic) minors [-] Karen Oanes Wei and
Kamille Oanes Wei who are claiming successional rights in the intestate estate of the
deceased Sima Wei, a.k.a. Rufino Guy Susim.

SO ORDERED.[10]

The Court of Appeals denied petitioner's motion for reconsideration, hence, this
petition.

Petitioner argues that the Court of Appeals disregarded existing rules on certification
against forum shopping; that the Release and Waiver of Claim executed by Remedios
released and discharged the Guy family and the estate of Sima Wei from any claims or
liabilities; and that private respondents do not have the legal personality to institute
the petition for letters of administration as they failed to prove their filiation during the
lifetime of Sima Wei in accordance with Article 175 of the Family Code.
Private respondents contend that their counsel's certification can be considered
substantial compliance with the rules on certification of non-forum shopping, and that
the petition raises no new issues to warrant the reversal of the decisions of the
Regional Trial Court and the Court of Appeals.

The issues for resolution are: 1) whether private respondents' petition should be
dismissed for failure to comply with the rules on certification of non-forum shopping;
2) whether the Release and Waiver of Claim precludes private respondents from
claiming their successional rights; and 3) whether private respondents are barred by
prescription from proving their filiation.

The petition lacks merit.

Rule 7, Section 5 of the Rules of Court provides that the certification of non-forum
shopping should be executed by the plaintiff or the principal party. Failure to comply
with the requirement shall be cause for dismissal of the case. However, a liberal
application of the rules is proper where the higher interest of justice would be served.
In Sy Chin v. Court of Appeals,[11] we ruled that while a petition may have been flawed
where the certificate of non-forum shopping was signed only by counsel and not by
the party, this procedural lapse may be overlooked in the interest of substantial justice.
[12]
 So it is in the present controversy where the merits[13] of the case and the absence of
an intention to violate the rules with impunity should be considered as compelling
reasons to temper the strict application of the rules.

As regards Remedios' Release and Waiver of Claim, the same does not bar private
respondents from claiming successional rights. To be valid and effective, a waiver
must be couched in clear and unequivocal terms which leave no doubt as to the
intention of a party to give up a right or benefit which legally pertains to him. A
waiver may not be attributed to a person when its terms do not explicitly and clearly
evince an intent to abandon a right.[14] 

In this case, we find that there was no waiver of hereditary rights. The Release and
Waiver of Claim does not state with clarity the purpose of its execution. It merely
states that Remedios received P300,000.00 and an educational plan for her minor
daughters "by way of financial assistance and in full settlement of any and all claims
of whatsoever nature and kind x x x against the estate of the late Rufino Guy
Susim."[15] Considering that the document did not specifically mention private
respondents' hereditary share in the estate of Sima Wei, it cannot be construed as a
waiver of successional rights.
Moreover, even assuming that Remedios truly waived the hereditary rights of private
respondents, such waiver will not bar the latter's claim. Article 1044 of the Civil Code,
provides:

ART. 1044. Any person having the free disposal of his property may accept or
repudiate an inheritance.

Any inheritance left to minors or incapacitated persons may be accepted by their

parents or guardians. Parents or guardians may repudiate the inheritance left to
their wards only by judicial authorization.

The right to accept an inheritance left to the poor shall belong to the persons
designated by the testator to determine the beneficiaries and distribute the property, or
in their default, to those mentioned in Article 1030. (Emphasis supplied)

Parents and guardians may not therefore repudiate the inheritance of their wards
without judicial approval. This is because repudiation amounts to an alienation of
property[16] which must pass the court's scrutiny in order to protect the interest of the
ward. Not having been judicially authorized, the Release and Waiver of Claim in the
instant case is void and will not bar private respondents from asserting their rights as
heirs of the deceased.

Furthermore, it must be emphasized that waiver is the intentional relinquishment of

a known right. Where one lacks knowledge of a right, there is no basis upon which
waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot
be established by a consent given under a mistake or misapprehension of fact. [17]

In the present case, private respondents could not have possibly waived their
successional rights because they are yet to prove their status as acknowledged
illegitimate children of the deceased. Petitioner himself has consistently denied that
private respondents are his co-heirs. It would thus be inconsistent to rule that they
waived their hereditary rights when petitioner claims that they do not have such right.
Hence, petitioner's invocation of waiver on the part of private respondents must fail.

Anent the issue on private respondents' filiation, we agree with the Court of Appeals
that a ruling on the same would be premature considering that private respondents
have yet to present evidence. Before the Family Code took effect, the governing law
on actions for recognition of illegitimate children was Article 285 of the Civil Code,
to wit:
ART. 285. The action for the recognition of natural children may be brought only
during the lifetime of the presumed parents, except in the following cases:

(1) If the father or mother died during the minority of the child, in which case the
latter may file the action before the expiration of four years from the attainment
of his majority;

(2) If after the death of the father or of the mother a document should appear of which
nothing had been heard and in which either or both parents recognize the child.

In this case, the action must be commenced within four years from the finding of the
document. (Emphasis supplied)

We ruled in Bernabe v. Alejo[18] that illegitimate children who were still minors at the
time the Family Code took effect and whose putative parent died during their minority
are given the right to seek recognition for a period of up to four years from attaining
majority age. This vested right was not impaired or taken away by the passage of the
Family Code.[19]

On the other hand, Articles 172, 173 and 175 of the Family Code, which superseded
Article 285 of the Civil Code, provide:

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

ART. 173. The action to claim legitimacy may be brought by the child during his or
her lifetime and shall be transmitted to the heirs should the child die during minority
or in a state of insanity. In these cases, the heirs shall have a period of five years
within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of
either or both of the parties.
ART. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same, evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except
when the action is based on the second paragraph of Article 172, in which case the
action may be brought during the lifetime of the alleged parent.

Under the Family Code, when filiation of an illegitimate child is established by a

record of birth appearing in the civil register or a final judgment, or an admission of
filiation in a public document or a private handwritten instrument signed by the parent
concerned, the action for recognition may be brought by the child during his or her
lifetime. However, if the action is based upon open and continuous possession of the
status of an illegitimate child, or any other means allowed by the rules or special laws,
it may only be brought during the lifetime of the alleged parent.

It is clear therefore that the resolution of the issue of prescription depends on the type
of evidence to be adduced by private respondents in proving their filiation. However,
it would be impossible to determine the same in this case as there has been no
reception of evidence yet. This Court is not a trier of facts. Such matters may be
resolved only by the Regional Trial Court after a full-blown trial.

While the original action filed by private respondents was a petition for letters of
administration, the trial court is not precluded from receiving evidence on private
respondents' filiation. Its jurisdiction extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the estate, including
the determination of the status of each heir.[20] That the two causes of action, one to
compel recognition and the other to claim inheritance, may be joined in one complaint
is not new in our jurisprudence.[21] As held in Briz v. Briz: [22]

The question whether a person in the position of the present plaintiff can in any event
maintain a complex action to compel recognition as a natural child and at the same
time to obtain ulterior relief in the character of heir, is one which in the opinion of this
court must be answered in the affirmative, provided always that the conditions
justifying the joinder of the two distinct causes of action are present in the particular
case. In other words, there is no absolute necessity requiring that the action to compel
acknowledgment should have been instituted and prosecuted to a successful
conclusion prior to the action in which that same plaintiff seeks additional relief in the
character of heir. Certainly, there is nothing so peculiar to the action to compel
acknowledgment as to require that a rule should be here applied different from that
generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly formulated by this court,
is undoubtedly to some extent supported by our prior decisions. Thus, we have held in
numerous cases, and the doctrine must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has not been in fact
acknowledged, may maintain partition proceedings for the division of the inheritance
against his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil.,
62); and the same person may intervene in proceedings for the distribution of the
estate of his deceased natural father, or mother (Capistrano vs. Fabella, 8 Phil., 135;
Conde vs. Abaya, 13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In neither of these
situations has it been thought necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is that in partition suits and
distribution proceedings the other persons who might take by inheritance are before
the court; and the declaration of heirship is appropriate to such proceedings.

WHEREFORE, the instant petition is DENIED. The Decision dated January 22,
2004 of the Court of Appeals in CA-G.R. SP No. 79742 affirming the denial of
petitioner's motion to dismiss; and its Resolution dated May 25, 2004 denying
petitioner's motion for reconsideration, are AFFIRMED. Let the records
be REMANDED to the Regional Trial Court of Makati City, Branch 138 for further
proceedings.

SO ORDERED.

[ G.R. No. 189516, June 08, 2016 ]

 OTAMIAS VS. REPUBLIC, AFP PGMC
DECISION

LEONEN, J.: 

A writ of execution lies against the pension benefits of a retired officer of the
Armed Forces of the Philippines, which is the subject of a deed of assignment
drawn by him granting support to his wife and five (5) children. The benefit of
exemption from execution of pension benefits is a statutory right that may be
waived, especially in order to comply with a husband's duty to provide support
under Article XV of the 1987 Constitution and the Family Code.

Petitioner Edna Mabugay-Otamias (Edna) and retired Colonel Francisco B.

Otamias (Colonel Otamias) were married on June 16, 1978 and had five (5)
children.[1]

On September 2000, Edna and Colonel Otamias separated due to his alleged
infidelity.[2] Their children remained with Edna.[3]

On August 2002, Edna filed a Complaint-Affidavit against Colonel Otamias before

the Provost Marshall Division of the Armed Forces of the Philippines.[4] Edna
demanded monthly support equivalent to 75% of Colonel Otamias' retirement
benefits.[5] Colonel Otamias executed an Affidavit, stating:
That sometime in August or September 2002, I was summoned at the Office of
the Provost Marshal, Philippine Army, in connection with a complaint affidavit
submitted to said Office by my wife Mrs. Edna M. Otamias signifying her
intention 75% of my retirement benefits from the AFP;

That at this point, I can only commit 50% of my retirement benefits to be pro-
rated among my wife and five (5) children;

That in order to implement this compromise, I am willing to enter into

Agreement with my wife covering the same;

That I am executing this affidavit to attest to the truth of the foregoing facts and
whatever legal purpose it may serve.[6]
On February 26, 2003, Colonel Otamias executed a Deed of Assignment where
he waived 50% of his salary and pension benefits in favor of Edna and their
children.[7] The Deed of Assignment was considered by the parties as a
compromise agreement.[8] It stated:
This Assignment, made and executed unto this 26th day of February 2003 at Fort
Bonifacio, Makati City, by the undersigned LTC Francisco B. Otamias, 0-0-
111045 (INP) PA, of legal age, married and presently residing at Dama De
Noche St., Pembo, Makati City.

WITNESSETH

WHEREAS, the undersigned affiant is the legal husband of EDNA M. OTAMIAS

and the father of Julie Ann, Jonathan, Jennifer, Jeffren and Jemwel all residing at
Patag, Cagayan de Oro City;
WHEREAS, the undersigned will be retiring from the military service and expects
to receive retirement benefits from the Armed Forces of the Philippines;

WHEREAS, the undersigned had expressed his willingness to give a share in his
retirement benefits to my wife and five (5) abovenamed children,

NOW, THEREFORE, for and in consideration of the foregoing premises, the

undersigned hereby stipulated the following:

1. That the undersigned will give to my legal wife and five (5) children FIFTY
PERCENT (50%) of my retirement benefits to be pro rated among them.

2. That a separate check(s) be issued and to be drawn and encash [sic] in the
name of the legal wife and five (5) children pro-rating the fifty (50%) percent of
my retirement benefits.

IN WITNESS WHEREOF, I have hereunto set my hand this 26th day of February

2003 at Fort Bonifacio, Makati City.[9]
Colonel Otamias retired on April 1, 2003.[10]

The agreement was honored until January 6, 2006.[11] Edna alleged that "the
A[rmed] F[orces] [of the] Philippines] suddenly decided not to honor the
agreement"[12] between Colonel Otamias and his legitimate family.

In a letter[13] dated April 3, 2006, the Armed Forces of the Philippines Pension

and Gratuity Management Center (AFP PGMC) informed Edna that a court order
was required for the AFP PGMC to recognize the Deed of Assignment.[14]

In another letter[15] dated April 17, 2006, the AFP PGMC reiterated that it could
not act on Edna's request to receive a portion of Colonel Otamias' pension
"unless ordered by [the] appropriate court."[16]

Heeding the advice of the AFP PGMC, Edna, on behalf of herself and Jeffren M.
Otamias and Jemwel M. Otamias (Edna, et al.), filed before the Regional Trial
Court of Cagayan de Oro, Misamis Oriental an action for support, docketed as
F.C. Civil Case No. 2006-039.[17]

The trial court's Sheriff tried to serve summons on Colonel Otamias several
times, to no avail.[18] Substituted service was resorted to.[19]Colonel Otamias was
subsequently declared in default for failure to file a responsive pleading despite
order of the trial court.[20]

The trial court ruled in favor of Edna, et al. and ordered the automatic deduction
of the amount of support from the monthly pension of Colonel Otamias.[21]

The dispositive portion of the trial court's Decision stated:

ALL THE FOREGOING CONSIDERED, and in consonance with the legal obligation
of the defendant to the plaintiffs, the Armed Forces of the Philippines, through
its Finance Center and/or appropriate Finance Officer thereof, is thereby ordered
to release to Edna Mabugay Otamias and minor Jemwel M. Otamias, herein
represented by his mother Edna, their fifty (50%) per cent share of each of the
monthly pension due to Colonel Francisco B. Otamias, AFP PA (Retired).

Defendant Francisco Otamias is also ordered to pay plaintiff Edna M. Otamias,

fifty (50%) per cent of whatever retirement benefits he has already received
from the Armed Forces of the Philippines AND the arrears in support, effective
January 2006 up to the time plaintiff receives her share direct from the Finance
Center of the Armed Forces of the Philippines.

IT IS SO ORDERED.[22]
The Armed Forces of the Philippines, through the Office of the Judge Advocate
General, filed a Manifestation/Opposition[23] to the Decision of the trial court, but
it was not given due course due to its late filing.[24]

Edna, et al., through counsel, filed a Motion for Issuance of Writ of

Execution[25] dated February 22, 2008. The trial court granted the Motion, and a
writ of execution was issued by the trial court on April 10, 2008.[26]

The Armed Forces of the Philippines Finance Center (AFP Finance Center),
through the Office of the Judge Advocate General, filed a Motion to Quash[27] the
writ of execution and argued that the AFP Finance Center's duty to disburse
benefits is ministerial. It releases benefits only upon the AFP PGMC's approval.[28]

The trial court denied the Motion to Quash and held that:
Under the law and existing jurisprudence, the "right to support" is practically
equivalent to the "right to life." The "right to life" always takes precedence over
"property rights." The "right to support/life" is also a substantive right which
always takes precedence over technicalities/procedural rules. It being so,
technical rules must yield to substantive justice. Besides, this Court's Decision
dated February 27, 2007 has long acquired finality, and as such, is ripe for
enforcement/execution.

THE FOREGOING CONSIDERED, the instant Motion is hereby DENIED.[29]

The AFP PGMC moved for reconsideration of the order denying the Motion to
Quash,[30] but the Motion was also denied by the trial court in the Order[31] dated
August 6, 2008.

A Notice of Garnishment was issued by the trial court on July 15, 2008 and was
received by the AFP PGMC on September 9, 2008.[32]

The AFP PGMC filed before the Court of Appeals a Petition for Certiorari and
Prohibition.[33]

The Court of Appeals granted[34] the Petition for Certiorari and Prohibition and
partially nullified the trial court's Decision insofar as it directed the automatic
deduction of support from the pension benefits of Colonel Otamias.

The Court of Appeals discussed that Section 31[35] of Presidential Decree No.
1638, otherwise known as the AFP Military Personnel Retirement and Separation
Decree of 1979, "provides for the exemption of the monthly pension of retired
military personnel from execution and attachment[,]"[36] while Rule 39, Section
13 of the Rules of Court provides:
SEC. 13. Property exempt from execution. Except as otherwise expressly
provided by law, the following property, and no other, shall be exempt from
execution:

....

(1) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government[.]
The Court of Appeals also cited Pacific Products, Inc. vs. Ong:[37]
[M]oneys sought to be garnished, as long as they remain in the hands of the
disbursing officer of the Government, belong to the latter, although the
defendant in garnishment may be entitled to a specific portion thereof. And still
another reason which covers both of the foregoing is that every consideration of
public policy forbids it.[38]
In addition, the AFP PGMC was not impleaded as a party in the action for
support; thus, it is not bound by the Decision.[39]

The dispositive portion of the Court of Appeals Decision reads:

WHEREFORE, the petition is GRANTED. The assailed Decision of the Regional
Trial Court, Branch 19, Cagayan de Oro City dated February 27, 2007 in Civil
Case No. 2006-039 is PARTIALLY NULLIFIED in so far as it directs the Armed
Forces of the Philippines Finance Center to automatically deduct the financial
support in favor of private respondents, Edna Otamias and her children Jeffren
and Jemwel Otamias, from the pension benefits of Francisco Otamias, a retired
military officer. The Order dated June 10, 2008, Order dated August 6, 2008 and
Writ of Execution dated April 10, 2008, all issued by the court a quo are
likewise SET ASIDE. Perforce, let a writ of permanent injunction issue enjoining
the implementation of the assailed Writ of Execution dated April 10, 2008 and
the corresponding Notice of Garnishment dated July 15, 2008. No
pronouncement as to costs.

SO ORDERED.[40] (Emphasis in the original)

Edna, et al. moved for reconsideration, but the Motion was denied by the Court
of Appeals.[41]

Edna, et al. filed before this Court a Petition for Review on Certiorari[42] on
November 11, 2009. In the Resolution[43] dated January 20, 2010, this Court
required respondent to comment.

In the Resolution[44] dated August 4, 2010, this Court noted the Comment filed
by the Office of the Solicitor General and required Edna, et al. to file a reply.[45]

A Reply[46] was filed on September 27, 2010.

Edna, et al. argue that the Deed of Assignment Colonel Otamias executed is
valid and legal.[47]

They claim that Section 31 of Presidential Decree No. 1638[48] "does not include
support";[49] hence, the retirement benefits of Colonel Otamias can be executed
upon.

Edna, et al. also argue that the Court of Appeals erred in granting respondent's
Petition because it effectively rendered the Deed of Assignment of no force and
effect.[50] On the other hand, the trial court's Decision implements the Deed of
Assignment and Edna, et al.'s right to support.[51]

Further, the AFP PGMC had already recognized the validity of the agreement and
had made payments to them until it suddenly stopped payment.[52] After Edna,
et al. obtained a court order, the AFP PGMC still refused to honor the Deed of
Assignment.[53]

The Armed Forces of the Philippines, through the Office of the Solicitor General,
argues that it was not a party to the case filed by Edna, et al.[54] Thus, "it cannot
be compelled to release part of the monthly pension benefits of retired Colonel
Otamias in favor of [Edna, et al.]."[55]

The Office of the Solicitor General avers that the AFP PGMC never submitted
itself to the jurisdiction of the trial court.[56] It was not a party to the case as the
trial court never acquired jurisdiction over the AFP PGMC.[57]

The Office of the Solicitor General also argues that Section 31 of Presidential
Decree No. 1638 and Rule 39, Section 13(1) of the Rules of Court support the
Court of Appeals Decision that Colonel Otamias' pension benefits are exempt
from execution.[58]

Section 31 of Presidential Decree No. 1638 "does not deprive the survivor/s of a
retired or separated officer or enlisted man of their right to support."[59] Rather,
"[w]hat is prohibited is for respondent [AFP PGMC] to segregate a portion of the
pension benefit in favor of the retiree's family while still in the hands of the
A[rmed] F[orces] [of the] Philippines]."[60]

Thus, the AFP PGMC "cannot be compelled to directly give or issue a check in
favor of [Edna, et al.] out of the pension gratuity of Col. Otamias."[61]

In their Reply,[62] Edna, et al. argue that the Armed Forces of the Philippines
should not be allowed to question the legal recourse they took because it was an
officer of the Armed Forces of the Philippines who had advised them to file an
action for support.[63]

They argue that the phrase "while in the active service" in Section 31 of
Presidential Decree No. 1638 refers to the "time when the retired officer incurred
his accountabilities in favor of a private creditor[,]"[64] who is a third person. The
phrase also "serves as a timeline designed to separate the debts incurred by the
retired officer after his retirement from those which he incurred prior thereto."[65]

Further, the accountabilities referred to in Section 31 of Presidential Decree No.

1638 refer to debts or loans, not to support.[66]

The issues for resolution are:

First, whether the Court of Appeals erred in ruling that the AFP Finance Center
cannot be directed to automatically deduct the amount of support needed by the
legitimate family of Colonel Otamias; and
Second, whether Colonel Otamias' pension benefits can be executed upon for the
financial support of his legitimate family.

The Petition is granted.

Article 6 of the Civil Code provides:

Article 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals or good customs, or prejudicial to a third person with
a right recognized by law.
The concept of waiver has been defined by this Court as:
a voluntary and intentional relinquishment or abandonment of a known existing
legal right, advantage, benefit, claim or privilege, which except for such waiver
the party would have enjoyed; the voluntary abandonment or surrender, by a
capable person, of a right known by him to exist, with the intent that such right
shall be surrendered and such person forever deprived of its benefit; or such
conduct as warrants an inference of the relinquishment of such right; or the
intentional doing of an act inconsistent with claiming it.[67]
In determining whether a statutory right can be waived, this Court is guided by
the following pronouncement:
[T]he doctrine of waiver extends to rights and privileges of any character, and,
since the word 'waiver' covers every conceivable right, it is the general rule that
a person may waive any matter which affects his property, and any alienable
right or privilege of which he is the owner or which belongs to him or to which he
is legally entitled, whether secured by contract, conferred with statute, or
guaranteed by constitution, provided such rights and privileges rest in the
individual, are intended for his sole benefit, do not infringe on the rights
of others, and further provided the waiver of the right or privilege is not
forbidden by law, and does not contravene public policy; and the principle
is recognized that everyone has a right to waive, and agree to waive, the
advantage of a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and relinquished
without infringing on any public right, and without detriment to the community
at large[.][68] (Emphasis in the original)
When Colonel Otamias executed the Deed of Assignment, he effectively waived
his right to claim that his retirement benefits are exempt from execution. The
right to receive retirement benefits belongs to Colonel Otamias. His decision to
waive a portion of his retirement benefits does not infringe on the right of third
persons, but even protects the right of his family to receive support.

In addition, the Deed of Assignment should be considered as the law between

the parties, and its provisions should be respected in the absence of allegations
that Colonel Otamias was coerced or defrauded in executing it. The general rule
is that a contract is the law between parties and parties are free to stipulate
terms and conditions that are not contrary to law, morals, good customs, public
order, or public policy.[69]

The Deed of Assignment executed by Colonel Otamias was not contrary to law; it
was in accordance with the provisions on support in the Family Code. Hence,
there was no reason for the AFP PGMC not to recognize its validity.
Further, this Court notes that the AFP PGMC granted the request for support of
the wives of other retired military personnel in a similar situation as that of
petitioner in this case. Attached to the Petition are the affidavits of the wives of
retired members of the military, who have received a portion of their husbands'
pensions.[70]

One affidavit stated:

4. That when I consulted and appeared before the Office of PGMC, I was
instructed to submit a Special Power of Authority from my husband so
they can release part of his pension to me;

5. That my husband signed the Special Power of Attorney at the PGMC

ceding 50% of his pension to me; the SPA form was given to us by the
PGMC and the same was signed by my husband at the PGMC; . . .

....

7. That the amount was deposited directly to my account by the PGMC-

Finance Center AFP out of the pension of my husband;

8. That only the Special Power of Attorney was required by the PGMC in
order for them to segregate my share of my husband's pension and
deposit the same to my account[.][71]

The other affidavit stated:

8. That my husband signed the Special Power of Attorney at the PGMC

ceding 50% of his pension to me; the SPA form was given to us by the
PGMC and the same was signed by my husband at the PGMC[.][72]

In addition, the AFP PGMC's website informs the public of the following
procedure:
Tanong: My husband-retiree cut-off my allotment. How can I have it restored?
Sagot: Pension benefits are separate properties of the retiree and can not [sic]
be subject of a Court [sic] Order for execution nor can they be assigned to any
third party (Sec. 31, PD 1638, as amended). However, a valid Special Power of
Attorney (SPA) by the retiree himself empowering the AFP Finance Center to
deduct certain amount from his lumpsum [sic] or pension pay as the case
maybe, as a rule, is a valid waiver of rights which can be effectively
implemented by the AFP F[inance] C[enter].[73]
Clearly, the AFP PGMC allows deductions from a retiree's pension for as long as
the retiree executes a Special Power of Attorney authorizing the AFP PGMC to
deduct a certain amount for the benefit of the retiree's beneficiary.

It is curious why Colonel Otamias was allowed to execute a Deed of Assignment

by the administering officer when, in the first place, the AFP PGMC's recognized
procedure was to execute a Special Power of Attorney, which would have been
the easier remedy for Colonel Otamias' family.

Instead, Colonel Otamias' family was forced to incur litigation expenses just to
be able to receive the financial support that Colonel Otamias was willing to give
to Edna, et al.

II

Section 31 of Presidential Decree No. 1638 provides:

Section 31. The benefits authorized under this Decree, except as provided
herein, shall not be subject to attachment, garnishment, levy, execution or any
tax whatsoever; neither shall they be assigned, ceded, or conveyed to any third
person: Provided, That if a retired or separated officer or enlisted man who is
entitled to any benefit under this Decree has unsettled money and/or property
accountabilities incurred while in the active service, not more than fifty per
centum of the pension gratuity or other payment due such officer or enlisted
man or his survivors under this Decree may be withheld and be applied to settle
such accountabilities.
Under Section 31, Colonel Otamias' retirement benefits are exempt from
execution. Retirement benefits are exempt from execution so as to ensure that
the retiree has enough funds to support himself and his family.

On the other hand, the right to receive support is provided under the Family
Code. Article 194 of the Family Code defines support as follows:
Art. 194. Support comprises everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in keeping with the
financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding

paragraph shall include his schooling or training for some profession, trade or
vocation, even beyond the age of majority. Transportation shall include
expenses in going to and from school, or to and from place of work.
The provisions of the Family Code also state who are obliged to give support,
thus:
Art. 195. Subject to the provisions of the succeeding articles, the following are
obliged to support each other to the whole extent set forth in the preceding
article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate
children of the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate
children of the latter; and

(5) Legitimate brothers and sisters, whether of the full or half- blood.

Art. 196. Brothers and sisters not legitimately related, whether of the full or
half-blood, are likewise bound to support each other to the full extent set forth
in Article 194 except only when the need for support of the brother or sister,
being of age, is due to a cause imputable to the claimant's fault or negligence.
Art. 197. For the support of legitimate ascendants; descendants, whether
legitimate or illegitimate; and brothers and sisters, whether legitimately or
illegitimately related, only the separate property of the person obliged to give
support shall be answerable provided that in case the obligor has no separate
property, the absolute community or the conjugal partnership, if financially
capable, shall advance the support, which shall be deducted from the share of
the spouses obliged upon the liquidation of the absolute community or of the
conjugal partnership[.]
The provisions of Rule 39 of the Rules of Court that are applicable to this case
are in apparent conflict with each other. Section 4 provides that judgments in
actions for support are immediately executory. On the other hand, Section 13(1)
provides that the right to receive pension from government is exempt from
execution, thus:
RULE 39

EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS

....

SEC. 4. Judgments not stayed by appeal. — Judgments in actions for injunction,

receivership, accounting and support, and such other judgments as are now or
may hereafter be declared to be immediately executory, shall be enforceable
after their rendition and shall not, be stayed by an appeal taken therefrom,
unless otherwise ordered by the trial court. On appeal therefrom, the appellate
court in its discretion may make an order suspending, modifying, restoring or
granting the injunction, receivership, accounting, or award of support.

The stay of execution shall be upon such terms as to bond or otherwise as may
be considered proper for the security or protection of the rights of the adverse
party.

....

SEC. 13. Property exempt from execution. — Except as otherwise expressly

provided by law, the following property, and no other, shall be exempt from
execution:

....

(1) The right to receive legal support, or money or property obtained as such

support, or any pension or gratuity from the Government;

....

But no article or species of property mentioned in this section shall be exempt

from execution issued upon a judgment recovered for its price or upon a
judgment of foreclosure of a mortgage thereon. (Emphasis supplied)
Based on the Family Code, Colonel Otamias is obliged to give support to his
family, petitioners in this case. However, he retired in 2003, and his sole source
of income is his pension. Judgments in actions for support are immediately
executory, yet under Section 31 of Presidential Decree No. 1638, his pension
cannot be executed upon.
However, considering that Colonel Otamias has waived a portion of his
retirement benefits through his Deed of Assignment, resolution on the conflict
between the civil code provisions on support and Section 31 of Presidential
Decree No. 1638 should be resolved in a more appropriate case.

III

Republic v. Yahon[74] is an analogous case because it involved the grant of

support to the spouse of a retired member of the Armed Forces of the
Philippines.

In Republic v. Yahon, Daisy R. Yahon filed a Petition for the Issuance of

Protection Order under Republic Act No. 9262.[75] She alleged that she did not
have any source of income because her husband made her resign from her job.
[76]
 The trial court issued a temporary restraining order, a portion of which
stated:
To insure that petitioner [Daisy R. Yahon] can receive a fair share of
respondent's retirement and other benefits, the following agencies thru
their heads are directed to WITHHOLD any retirement, pension [,] and
other benefits of respondent, S/SGT. CHARLES A. YAHON, a member of
the Armed Forces of the Philippines assigned at 4ID, Camp Evangelista, Patag,
Cagayan de Oro City until further orders from the court:
1. Commanding General/Officer of the Finance Center of the Armed Forces of the
Philippines, Camp Emilio Aguinaldo, Quezon City;

2. The Management of RSBS, Camp Emilio Aguinaldo, Quezon City;

3. The Regional Manager of PAG-IBIG, Mortola St., Cagayan de Oro City.

[77]
 (Emphasis in the original)
The trial court subsequently granted Daisy's Petition and issued a permanent
protection order[78] and held:
Pursuant to the order of the court dated February 6, 2007, respondent, S/Sgt.
Charles A. Yahon is directed to give it to petitioner 50% of whatever retirement
benefits and other claims that may be due or released to him from the
government and the said share of petitioner shall be automatically deducted
from respondent's benefits and claims and be given directly to the petitioner,
Daisy R. Yahon.

Let copy of this decision be sent to the Commanding General/Officer of Finance

Center of the Armed Forces of the Philippines, Camp Emilio Aguinaldo, Quezon
City; the Management of RSBS, Camp Emilio Aguinaldo, Quezon City and the
Regional Manager of PAG-IBIG, Mortola St., Cagayan de Oro City for their
guidance and strict compliance.[79]
In that case, the AFP Finance Center filed before the trial court a Manifestation
and Motion stating that "it was making a limited and special appearance"[80] and
argued that the trial court did not acquire jurisdiction over the Armed Forces of
the Philippines. Hence, the Armed Forces of the Philippines is not bound by the
trial court's ruling.[81]

The Armed Forces of the Philippines also cited Pacific Products, where this Court
ruled that:
A rule, which has never been seriously questioned, is that money in the hands of
public officers, although it may be due government employees, is not liable to
the creditors of these employees in the process of garnishment. One reason is,
that the State, by virtue of its sovereignty may not be sued in its own courts
except by express authorization by the Legislature, and to subject its officers to
garnishment would be to permit indirectly what is prohibited directly. Another
reason is that moneys sought to be garnished, as long as they remain in the
hands of the disbursing officer of the Government, belong to the latter, although
the defendant in garnishment may be entitled to a specific portion thereof. And
still another reason which covers both of the foregoing is that every
consideration of public policy forbids it.[82] (Citations omitted)
This Court in Republic v. Yahon denied the Petition and discussed that because
Republic Act No. 9262 is the later enactment, its provisions should prevail,
[83]
 thus:
We hold that Section 8(g) of R.A. No. 9262, being a later enactment, should be
construed as laying down an exception to the general rule above stated that
retirement benefits are exempt from execution. The law itself declares that the
court shall order the withholding of a percentage of the income or salary of the
respondent by the employer, which shall be automatically remitted directly to
the woman "[n]otwithstanding other laws to the contrary"[84] (Emphasis in the
original)
IV

The 1987 Constitution gives much importance to the family as the basic unit of
society, such that Article XV[85] is devoted to it.

The passage of the Family Code further implemented Article XV of the

Constitution. This Court has recognized the importance of granting support to
minor children, provided that the filiation of the child is proven. In this case, the
filiation of Jeffren M. Otamias and Jemwel M. Otamias was admitted by Colonel
Otamias in the Deed of Assignment.[86]

Even before the passage of the Family Code, this Court has given primary
consideration to the right of a child to receive support. In Samson v. Yatco,[87] a
petition for support was dismissed with prejudice by the trial court on the ground
that the minor asking for support was not present in court during trial. An appeal
was filed, but it was dismissed for having been filed out of time. This Court
relaxed the rules of procedure and held that "[i]f the order of dismissal with
prejudice of the petition for support were to stand, the petitioners would be
deprived of their right to present and nature support."[88]

In Gan v. Reyes,[89] Augustus Caezar R. Gan (Gan) questioned the trial court's

decision requiring him to give support and claimed that that he was not the
father of the minor seeking support. He also argued that he was not given his
day in court. This Court held that Gan's arguments were meant to delay the
execution of the judgment, and that in any case, Gan himself filed a Motion for
Leave to Deposit in Court Support Pendente Lite:
In all cases involving a child, his interest and welfare are always the paramount
concerns. There may be instances where, in view of the poverty of the child, it
would be a travesty of justice to refuse him support until the decision of the trial
court attains finality while time continues to slip away. An excerpt from the early
case of De Leon v. Soriano is relevant, thus:
The money and property adjudged for support and education should and must
be given presently and without delay because if it had to wait the final
judgment, the children may in the meantime have suffered because of lack of
food or have missed and lost years in school because of lack of funds. One
cannot delay the payment of such funds for support and education for the
reason that if paid long afterwards, however much the accumulated amount, its
payment cannot cure the evil and repair the damage caused. The children with
such belated payment for support and education cannot act as gluttons and eat
voraciously and unwisely, afterwards, to make up for the years of hunger and
starvation. Neither may they enrol in several classes and schools and take up
numerous subjects all at once to make up for the years they missed in school,
due to non-payment of the funds when needed.[90]
V

The non-inclusion of the AFP PGMC or the AFP Finance Center in the action for
support was proper, considering that both the AFP PGMC and the AFP Finance
Center are not the persons obliged to give support to Edna, et al. Thus, it was
not a real party-in-interest.[91] Nor was the AFP PGMC a necessary party because
complete relief could be obtained even without impleading the AFP PGMC.[92]

WHEREFORE, the Petition is GRANTED. The Court of Appeals Decision dated

May 22, 2009 and Resolution dated August 11, 2009 in CA-G.R. SP No. 02555-
MIN are REVERSED and SET ASIDE. The Regional Trial Court Decision dated
February 27, 2007 in F.C. Civil Case No. 2006-039 is REINSTATED.

SO ORDERED.
 ART 9
[ G.R. NO. 174689, October 19, 2007 ]
ROMMEL JACINTO DANTES SILVERIO, PETITIONER, VS.
REPUBLIC OF THE PHILIPPINES, RESPONDENT.

DECISION

CORONA, J.: 

When God created man, He made him in the

  likeness of God; He created them male and
female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted

by Bathala and she heard voices coming from
inside the bamboo. “Oh North Wind! North
Wind! Please let us out!,” the voices said. She
pecked the reed once, then twice. All of a
  sudden, the bamboo cracked and slit open.
Out came two human beings; one was a male
and the other was a female. Amihan named
the man “Malakas” (Strong) and the woman
“Maganda” (Beautiful). (The Legend of
Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the
law recognize the changes made by a physician using scalpel, drugs and
counseling with regard to a person’s sex? May a person successfully petition for
a change of name and sex appearing in the birth certificate to reflect the result
of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a

petition for the change of his first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No.
02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the
spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His
name was registered as “Rommel Jacinto Dantes Silverio” in his certificate of live
birth (birth certificate). His sex was registered as “male.”
He further alleged that he is a male transsexual, that is, “anatomically male but
feels, thinks and acts as a female” and that he had always identified himself with
girls since childhood.[1] Feeling trapped in a man’s body, he consulted several
doctors in the United States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform himself to a
“woman” culminated on January 27, 2001 when he underwent sex reassignment
surgery[2] in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino
Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who
issued a medical certificate attesting that he (petitioner) had in fact undergone
the procedure.

From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed from
“Rommel Jacinto” to “Mely,” and his sex from “male” to “female.”

An order setting the case for initial hearing was published in the People’s Journal
Tonight, a newspaper of general circulation in Metro Manila, for three
consecutive weeks.[3] Copies of the order were sent to the Office of the Solicitor
General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No

opposition to the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz,
Jr. and his American fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision[4] in favor of petitioner. Its
relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of making
his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in
consonance with the principles of justice and equity. With his sexual [re-
assignment], petitioner, who has always felt, thought and acted like a woman,
now possesses the physique of a female. Petitioner’s misfortune to be trapped in
a man’s body is not his own doing and should not be in any way taken against
him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused
to anybody or the community in granting the petition. On the contrary, granting
the petition would bring the much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the
present petition despite due notice and publication thereof. Even the State,
through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering

the Civil Registrar of Manila to change the entries appearing in the Certificate of
Birth of [p]etitioner, specifically for petitioner’s first name from “Rommel
Jacinto” to MELY and petitioner’s gender from “Male” to FEMALE.[5]

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG,
filed a petition for certiorari in the Court of Appeals.[6] It alleged that there is no
law allowing the change of entries in the birth certificate by reason of sex
alteration.

On February 23, 2006, the Court of Appeals[7] rendered a decision[8] in favor of

the Republic. It ruled that the trial court’s decision lacked legal basis. There is no
law allowing the change of either name or sex in the certificate of birth on the
ground of sex reassignment through surgery. Thus, the Court of Appeals granted
the Republic’s petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it
was denied.[9] Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth
certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and
108 of the Rules of Court and RA 9048.[10]

The petition lacks merit.

A PERSON’S FIRST NAME

CANNOT BE CHANGED ON THE
GROUND OF SEX REASSIGNMENT

Petitioner invoked his sex reassignment as the ground for his petition for change
of name and sex. As found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of
making his birth records compatible with his present sex. (emphasis
supplied)

Petitioner believes that after having acquired the physical features of a female,
he became entitled to the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for
purposes of identification.[11] A change of name is a privilege, not a right.
[12]
 Petitions for change of name are controlled by statutes.[13] In this connection,
Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of

First Name or Nickname. – No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors and
change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with
the provisions of this Act and its implementing rules and regulations.

RA 9048 now governs the change of first name.[14] It vests the power and
authority to entertain petitions for change of first name to the city or municipal
civil registrar or consul general concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to
exclude the change of first name from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative petition for change of name is
first filed and subsequently denied.[15] It likewise lays down the corresponding
venue,[16] form[17] and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.

RA 9048 likewise provides the grounds for which change of first name may be
allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for
change of first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner
and he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he
thought he transformed himself into through surgery. However, a change of
name does not alter one’s legal capacity or civil status.[18] RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioner’s first name for his declared purpose
may only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change.[19] In
addition, he must show that he will be prejudiced by the use of his true and
official name.[20] In this case, he failed to show, or even allege, any prejudice
that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of
petitioner’s first name was not within that court’s primary jurisdiction as the
petition should have been filed with the local civil registrar concerned, assuming
it could be legally done. It was an improper remedy because the proper remedy
was administrative, that is, that provided under RA 9048. It was also filed in the
wrong venue as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it had no merit since
the use of his true and official name does not prejudice him at all. For all these
reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as
the change of his first name was concerned.

NO LAW ALLOWS THE

CHANGE OF ENTRY IN THE
BIRTH CERTIFICATE AS TO
SEX ON THE GROUND OF SEX
REASSIGNMENT

The determination of a person’s sex appearing in his birth certificate is a legal

issue and the court must look to the statutes.[21] In this connection, Article 412
of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a
judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA
9048 in so far as clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings
and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors.[22] Rule 108
now applies only to substantial changes and corrections in entries in the civil
register.[23]

Section 2(c) of RA 9048 defines what a “clerical or typographical error” is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall
mean:
 xxx             xxx             xxx

(3) “Clerical or typographical error” refers to a mistake committed in the performance of clerical
work in writing, copying, transcribing or typing an entry in the civil register that is harmless and
innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or changed only by reference
to other existing record or records: Provided, however, That no correction must involve the
change ofnationality, age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is
not a mere clerical or typographical error. It is a substantial change for which
the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule
108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil
Code:[24]

ART. 407. Acts, events and judicial decrees concerning the civil status of persons
shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth.[25] However, no reasonable
interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.

To correct simply means “to make or set aright; to remove the faults or error
from” while to change means “to replace something with something else of the
same kind or with something that serves as a substitute.”[26] The birth certificate
of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is
necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate children and
naturalization), events (such as births, marriages, naturalization and deaths)
and judicial decrees (such as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal consequences that
touch upon the legal capacity, status and nationality of a person. Their effects
are expressly sanctioned by the laws. In contrast, sex reassignment is not
among those acts or events mentioned in Article 407. Neither is it recognized
nor even mentioned by any law, expressly or impliedly.

“Status” refers to the circumstances affecting the legal situation (that is, the
sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.[27]

The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at
his own will, such as his being legitimate or illegitimate, or his being married or
not. The comprehensive term status… include such matters as the beginning and
end of legal personality, capacity to have rights in general, family relations, and
its various aspects, such as birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even succession.[28] (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part

of a person’s legal capacity and civil status. In this connection, Article 413 of the
Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be
governed by special laws.

But there is no such special law in the Philippines governing sex reassignment
and its effects. This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician

or midwife in attendance at the birth or, in default thereof, the declaration of
either parent of the newborn child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall be exempt from documentary
stamp tax and shall be sent to the local civil registrar not later than thirty days
after the birth, by the physician or midwife in attendance at the birth or by
either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following
facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,
citizenship and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born;
and (f) such other data as may be required in the regulations to be issued.
 xxx             xxx             xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.[29] Thus, the sex of a person is determined at birth , visually done by the birth attendant
(the physician or midwife) by examining the genitals of the infant. Considering that there is no law
legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or
her birth, if not attended by error,[30] is immutable.[31]

When words are not defined in a statute they are to be given their common and ordinary meaning in
the absence of a contrary legislative intent. The words “sex,” “male” and “female” as used in the
Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative intent to the contrary. In
this connection, sex is defined as “the sum of peculiarities of structure and function that distinguish
a male from a female”[32] or “the distinction between male and female.”[33] Female is “the sex that
produces ova or bears young”[34] and male is “the sex that has organs to produce spermatozoa for
fertilizing ova.”[35] Thus, the words “male” and “female” in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, “words that are employed in a statute
which had at the time a well-known meaning are presumed to have been used in that sense unless
the context compels to the contrary.”[36] Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued that the term “sex” as used
then is something alterable through surgery or something that allows a post-operative male-to-
female transsexual to be included in the category “female.”

For these reasons, while petitioner may have succeeded in altering his body and appearance through
the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis for his petition for the correction or change of
the entries in his birth certificate.

NEITHER MAY ENTRIES IN THE BIRTH

CERTIFICATE AS TO FIRST NAME OR
SEX BE CHANGED ON THE GROUND OF
EQUITY

The trial court opined that its grant of the petition was in consonance with the principles of justice
and equity. It believed that allowing the petition would cause no harm, injury or prejudice to
anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioner’s first step
towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a woman.[37] One of its
essential requisites is the legal capacity of the contracting parties who must be a male and a female .
[38]
 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws
on marriage and family relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are
various laws which apply particularly to women such as the provisions of the Labor Code on
employment of women,[39] certain felonies under the Revised Penal Code[40] and the presumption of
survivorship in case of calamities under Rule 131 of the Rules of Court,[41] among others. These laws
underscore the public policy in relation to women which could be substantially affected if
petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that “[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law.” However, it is not a license
for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not
to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what
proof must be presented and what procedures shall be observed. If the legislature intends to confer
on a person who has undergone sex reassignment the privilege to change his name and sex to
conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to fashion a
law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner
pleads that “[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams.” No argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the commonly recognized parameters of
social convention and that, at least for them, life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by
the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

ART 14

DEL SOCORRO VS. VAN WILSEM

DECISION
PERALTA, J.: 

Before the Court is a petition for review on certiorari under Rule 45 of the Rules
of Court seeking to reverse and set aside the Orders[1]dated February 19, 2010
and September 1, 2010, respectively, of the Regional Trial Court of Cebu City
(RTC-Cebu), which dismissed the criminal case entitled People of the
Philippines  v. Ernst Johan Brinkman Van  Wilsem, docketed as Criminal Case No.
CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as
the Anti-Violence Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman

Van Wilsem contracted marriage in Holland on September 25, 1990.[2] On
January 19, 1994, they were blessed with a son named Roderigo Norjo
Van Wilsem, who at the time of the filing of the instant petition was sixteen (16)
years of age.[3]

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a

Divorce Decree issued by the appropriate Court of Holland.[4] At that time, their
son was only eighteen (18) months old.[5] Thereafter, petitioner and her son
came home to the Philippines.[6]

According to petitioner, respondent made a promise to provide monthly support

to their son in the amount of Two Hundred Fifty (250) Guildene (which is
equivalent to Php17,500.00 more or less).[7]  However, since the arrival of
petitioner and her son in the Philippines, respondent never gave support to the
son, Roderigo.[8]

Not long thereafter, respondent came to the Philippines and remarried in

Pinamungahan, Cebu, and since then, have been residing thereat.[9] Respondent
and his new wife established a business known as Paree Catering, located at
Barangay Tajao, Municipality of Pinamungahan, Cebu City.[10] To date, all the
parties, including their son, Roderigo, are presently living in Cebu City.[11]

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for
support from respondent. However, respondent refused to receive the letter.[12]

Because of the foregoing circumstances, petitioner filed a complaint-affidavit

with the Provincial Prosecutor of Cebu City against respondent for violation of
Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to
support his minor child with petitioner.[13]Respondent submitted his counter-
affidavit thereto, to which petitioner also submitted her reply-affidavit.
[14]
 Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution
recommending the filing of an information for the crime charged against herein
respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20
thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in the
Municipality of Minglanilla, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and deliberately deprive, refuse and still continue to
deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor,
of financial support legally due him, resulting in economic abuse to the victim.

CONTRARY TO LAW.[15]

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold
Departure Order against respondent.[16]  Consequently, respondent was arrested
and, subsequently, posted bail.[17]

Petitioner also filed a Motion/Application of Permanent Protection Order to which

respondent filed his Opposition.[18] Pending the resolution thereof, respondent
was arraigned.[19]

Subsequently, without the RTC-Cebu having resolved the application of the

protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack
of jurisdiction over the offense charged; and (2) prescription of the crime
charged.[20]

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,
[21]
 dismissing the instant criminal case against respondent on the ground that
the facts charged in the information do not constitute an offense with respect to
the respondent who is an alien, the dispositive part of which states:

WHEREFORE, the Court finds that the facts charged in the information do not
constitute an offense with respect to the accused, he being an alien, and
accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his
provisional liberty is hereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.[22]

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating

respondent’s obligation to support their child under Article 195[23] of the Family
Code, thus, failure to do so makes him liable under R.A. No. 9262 which “equally
applies to all persons in the Philippines who are obliged to support their minor
children regardless of the obligor’s nationality.”[24]

On September 1, 2010, the lower court issued an Order[25] denying petitioner’s

Motion for Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced

earlier in the memorandum of the prosecution. Thus, the court hereby reiterates
its ruling that since the accused is a foreign national he is not subject to our
national law (The Family Code) in regard to a parent’s duty and obligation to
give support to his child. Consequently, he cannot be charged of violating R.A.
9262 for his alleged failure to support his child. Unless it is conclusively
established that R.A. 9262 applies to a foreigner who fails to give support to his
child, notwithstanding that he is not bound by our domestic law which mandates
a parent to give such support, it is the considered opinion of the court that
no prima facie case exists against the accused herein, hence, the case should be
dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.[26]

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor

child under Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A.
No. 9262 for his unjustified failure to support his minor child.[27]

At the outset, let it be emphasized that We are taking cognizance of the instant
petition despite the fact that the same was directly lodged with the Supreme
Court, consistent with the ruling in  Republic  v. Sunvar Realty Development
Corporation,[28] which lays down the instances when a ruling of the trial court
may be brought on appeal directly to the Supreme Court without violating the
doctrine of hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule
45 Petition with this Court, in case only questions of law are raised or
involved. This latter situation was one that petitioners found themselves in
when they filed the instant Petition to raise only questions of law.

In Republic  v. Malabanan, the Court clarified the three modes of appeal from

decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error
under Rule 41, whereby judgment was rendered in a civil or criminal action by
the RTC in the exercise of its original jurisdiction; (2) by a petition for review
under Rule 42, whereby judgment was rendered by the RTC in the exercise of its
appellate jurisdiction; and (3) by a petition for review on certiorari before the
Supreme Court under Rule 45. “The first mode of appeal is taken to the [Court
of Appeals] on questions of fact or mixed questions of fact and law. The second
mode of appeal is brought to the CA on questions of fact, of law, or mixed
questions of fact and law. The third mode of appeal is elevated to the
Supreme Court only on questions of law.” (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the
probative value of the evidence presented or of the truth or falsehood of the
facts being admitted, and the doubt concerns the correct application of law and
jurisprudence on the matter. The resolution of the issue must rest solely on what
the law provides on the given set of circumstances.[29]
Indeed, the issues submitted to us for resolution involve questions of law – the
response thereto concerns the correct application of law and jurisprudence on a
given set of facts, i.e., whether or not a foreign national has an obligation to
support his minor child under Philippine law; and whether or not he can be held
criminally liable under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel

question of law concerning the liability of a foreign national who allegedly
commits acts and omissions punishable under special criminal laws, specifically
in relation to family rights and duties. The inimitability of the factual milieu of
the present case, therefore, deserves a definitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the
instant petition and remanding the same to the CA would only waste the time,
effort and resources of the courts. Thus, in the present case, considerations of
efficiency and economy in the administration of justice should prevail over the
observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious.
Nonetheless, we do not fully agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it
is imperative that the legal obligation to support exists.

Petitioner invokes Article 195[30] of the Family Code, which provides the parent’s
obligation to support his child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to Article 26 of the Family Code,
[31]
 respondent is not excused from complying with his obligation to support his
minor child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear
basis presented by petitioner that she, as well as her minor son, are entitled to
financial support.[32] Respondent also added that by reason of the Divorce
Decree, he is not obligated to petitioner for any financial support.[33]

On this point, we agree with respondent that petitioner cannot rely on Article
195[34] of the New Civil Code in demanding support from respondent, who is a
foreign citizen, since Article 15[35] of the New Civil Code stresses the principle of
nationality. In other words, insofar as Philippine laws are concerned, specifically
the provisions of the Family Code on support, the same only applies to Filipino
citizens. By analogy, the same principle applies to foreigners such that they are
governed by their national law with respect to family rights and duties.[36]

The obligation to give support to a child is a matter that falls under family rights
and duties.  Since the respondent is a citizen of Holland or the Netherlands, we
agree with the RTC-Cebu that he is subject to the laws of his country, not to
Philippine law, as to whether he is obliged to give support to his child, as well as
the consequences of his failure to do so.[37]

In the case of  Vivo v. Cloribel,[38] the Court held that –

Furthermore, being still aliens, they are not in position to invoke the
provisions of the Civil Code of the Philippines, for that Code cleaves to
the principle that family rights and duties are governed by their
personal law, i.e., the laws of the nation to which they belong even when
staying in a foreign country (cf. Civil Code, Article 15).[39]

It cannot be gainsaid, therefore, that the respondent is not obliged to support

petitioner’s son under Article 195 of the Family Code as a consequence of the
Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a
dispute or case has the burden of proving the foreign law.[40]  In the present
case, respondent hastily concludes that being a national of the Netherlands, he
is governed by such laws on the matter of provision of and capacity to support.
[41]
 While respondent pleaded the laws of the Netherlands in advancing his
position that he is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the
Netherlands does not impose upon the parents the obligation to support their
child (either before, during or after the issuance of a divorce decree),
because Llorente v. Court of Appeals,[42]has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to take judicial notice of them.  Like any other fact, they must
be alleged and proved.[43]

In view of respondent’s failure to prove the national law of the Netherlands in his
favor, the doctrine of processual presumption shall govern. Under this doctrine,
if the foreign law involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or domestic or internal
law.[44] Thus, since the law of the Netherlands as regards the obligation to
support has not been properly pleaded and proved in the instant case, it is
presumed to be the same with Philippine law, which enforces the obligation of
parents to support their children and penalizing the non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera',[45] the Court held that a divorce

obtained in a foreign land as well as its legal effects may be recognized in the
Philippines in view of the nationality principle on the matter of status of persons,
the Divorce Covenant presented by respondent does not completely show that
he is not liable to give support to his son after the divorce decree was issued.
Emphasis is placed on petitioner’s allegation that under the second page of the
aforesaid covenant, respondent’s obligation to support his child is specifically
stated,[46] which was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of
respondent states that parents have no obligation to support their children or
that such obligation is not punishable by law, said law would still not find
applicability, in light of the ruling in Bank of America, NT and SA  v. American
Realty Corporation,[47] to wit:
In the instant case, assuming arguendo that the English Law on the matter were
properly pleaded and proved in accordance with Section 24, Rule 132 of the
Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-
Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound

and established public policy of the forum, the said foreign law,
judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and

those which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle
imbedded in our jurisdiction proscribing the splitting up of a single cause of
action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent —

If two or more suits are instituted on the basis of the same cause of action, the
filing of one or a judgment upon the merits in any one is available as a ground
for the dismissal of the others.
Moreover, foreign law should not be applied when its application would
work undeniable injustice to the citizens or residents of the forum. To
give justice is the most important function of law; hence, a law, or judgment or
contract that is obviously unjust negates the fundamental principles of Conflict of
Laws.[48]

Applying the foregoing, even if the laws of the Netherlands neither enforce a
parent’s obligation to support his child nor penalize the non-compliance
therewith, such obligation is still duly enforceable in the Philippines because it
would be of great injustice to the child to be denied of financial support when the
latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer

liable to support his former wife, in consonance with the ruling in San Luis v.
San Luis,[49] to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she
should no longer be considered married to the alien spouse. Further, she should
not be required to perform her marital duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner

has to be considered still married to private respondent and still subject
to a wife's obligations under Article 109, et. seq. of the Civil Code cannot
be just. Petitioner should not be obliged to live together with, observe respect
and fidelity, and render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of
justice are to be served. (Emphasis added)[50]

Based on the foregoing legal precepts, we find that respondent may be made
liable under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing
to give support to petitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of

violence against women and their children is committed through any of the
following acts:
xxxx

(e) Attempting to compel or compelling the woman or her child to engage in

conduct which the woman or her child has the right to desist from or desist from
conduct which the woman or her child has the right to engage in, or attempting
to restrict or restricting the woman's or her child's freedom of movement or
conduct by force or threat of force, physical or other harm or threat of physical
or other harm, or intimidation directed against the woman or child. This shall
include, but not limited to, the following acts committed with the purpose or
effect of controlling or restricting the woman's or her child's movement or
conduct:

xxxx
(2) Depriving or threatening to deprive the woman or her children of
financial support legally due her or her family, or deliberately providing the
woman's children insufficient financial support;

xxxx

(i) Causing mental or emotional anguish, public ridicule or humiliation to the

woman or her child, including, but not limited to, repeated verbal and emotional
abuse, and denial of financial support or custody of minor children of
access to the woman's child/children.[51]

Under the aforesaid special law, the deprivation or denial of financial support to
the child is considered an act of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we

find strength in petitioner’s claim that the Territoriality Principle in criminal law,
in relation to Article 14 of the New Civil Code, applies to the instant case, which
provides that:“[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations.”  On this score, it
is indisputable that the alleged continuing acts of respondent in refusing to
support his child with petitioner is committed here in the Philippines as all of the
parties herein are residents of the Province of Cebu City.  As such, our courts
have territorial jurisdiction over the offense charged against respondent. It is
likewise irrefutable that jurisdiction over the respondent was acquired upon his
arrest.

Finally, we do not agree with respondent’s argument that granting, but not
admitting, that there is a legal basis for charging violation of R.A. No. 9262 in
the instant case, the criminal liability has been extinguished on the ground of
prescription of crime[52] under Section 24 of R.A. No. 9262, which provides that:
SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No.
9262 is a continuing offense,[53] which started in 1995 but is still ongoing at
present. Accordingly, the crime charged in the instant case has clearly not
prescribed.

Given, however, that the issue on whether respondent has provided support to
petitioner’s child calls for an examination of the probative value of the evidence
presented, and the truth and falsehood of facts being admitted, we hereby
remand the determination of this issue to the RTC-Cebu which has jurisdiction
over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010

and September 1, 2010, respectively, of the Regional Trial Court of the City of
Cebu are hereby REVERSED and SET ASIDE. The case is REMANDED to the
same court to conduct further proceedings based on the merits of the case.

SO ORDERED.